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UNIVERSITY 

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CASES   ON   TORTS 


CASES  ON  TORTS 


FRANK  LESLIE  SIMPSON,  A.B.,  LL.  M. 

OF  THE  FACULTY  OF  THE  BOSTON  UNIVER8ITY  LAW  SCHOOL 


TO    ACCOMPANY 

"THE  LAW  OF  TORTS ^' 

BY  MELVILLE  M.  BIGELOW,  LL.  D. 


BOSTON 
LITTLE,  BROWN,  AND  COMPANY 

1908 


T 
Si5il']t 


Copyright,  1908, 
Bt  Frank  Leslie  Simpsow. 


All  rights  reserved 


NOTE. 

In  preparing  the  present  volume  of  Cases  on  Torts,  the  editor 
has  had  two  principal  objects  in  mind. 

First,  To  collect  a  set  of  cases  to  be  studied  and  analyzed  care- 
fully. 

Second,  To  furnish  an  adequate  volume  of  illustrative  cases  to 
accompany  Prof.  Melville  M.  Bigelow's  valuable  work,  "  The  Law 
of  Torts,"  eighth  edition. 

In  selecting  cases,  three  rules  of  usefulness  of  cases  for  study 
and  illustration  have  been  the  guides. 

First,  no  case  is  reported  in  which  the  facts  are  not  fully  stated; 
no  attempt  has,  however,  been  made  to  reduce  the  facts  to  the  lowest 
material  terms.  Not  the  least  profit  which  the  student  obtains 
from  the  study  of  a  case  lies  in  the  practice  of  eliminating  imma- 
terial matter  and  in  determining  the  material  facts  upon  which 
the  decision  is  made. 

Second,  the  cases  selected  are  those  in  which  the  facts  represent 
ordinary  controversies,  such  as  are  likely  to  arise  frequently. 

Third,  leading  cases  and  those  indicating  recent  development 
of  the  law,  following  modern  social,  economic,  and  political  move- 
ments, have  been  chosen;  especially  is  this  true  of  the  subject  of 
Interference  with    Contract. 

The  order  followed,  after  the  Introduction,  is  that  of  Dr.  Bige- 
low's text,  eighth  edition;  Part  I  including  torts,  the  unlawfulness 
of  which  turns  upon  the  culpability  of  mind  of  the  defendant,  — 
negligence,  or  culpable  accident,  being  included  herein ;  Part  II 
including  those  torts,  the  unlawfulness  of  which  turns  upon  the 
nature  of  the  act  done,  irrespective  of  the  state  of  mind  or  due 
care  of  tlie  defendant;  Part  III  illustrating  the  common  aspects 
of  all  torts.  The  purpose  in  this  has  been  to  emphasize  the  unity 
of  the  Law  of  Torts. 

A  number  of  cases  in  Bigelow's  "  Cases  on  Torts "  have  been 
used  in  the  present  work,  but  it  has  been  found  necessary  in  re- 


VI  NOTE. 

spect  to  some  of  the  specific  torts  greatly  to  increase  the  number 
of  cases  reported,  and  in  respect  to  others  to  select  almost  entirely 
new  cases.  The  former  is  true  of  Deceit,  Slander  and  Libel,  Tres- 
pass,  Conversion  and   Negligence. 

The  latter  is  true  of  Unfair  Competition,  Procuring  Breach  of 
Contract,  and  Procuring  Eefusal  to  Contract. 

Indeed  such  has  been  the  development  of  these  last  mentioned 
subjects,  that  only  three  of  the  cases  reported  in  this  volume  had 
been  decided  when  the  edition  of  Dr.  Bigelow's  cases  was  published. 

The  Introduction  and  the  chapter  on  Common  Aspects  are  en- 
tirely new.  F.  L.  s. 

Boston,  October  1,  1908. 


CONTENTS. 


PAGE 

Cases  Reported xi 

Statute  Reported xv 

Introduction 1 

Contract  Duty  Distinguished 1 

Tort  as  a  Crime 9 

Moral  Duty  Distinguished 20 

Damnum  absque  Injuria 25 


SPECIFIC   TORTS. 

PART    I. 
CULPABLE   MIND. 

Wrongful  Means:   Fraud. 

CHAPTER  I. 

Deceit 31 

What  must  be  Proved 31 

Overlapping  Contract 39 

The  Representation 46 

Defendant's  Knowledge  of  Falsity 60 

Intent 81 

Acting  upon  the  Representation 89 

Damage 90 

CHAPTER  II. 

Unfair  Competition 96 

Nature  of  the  Representation 96 

nowledge:   Intent:   Damage ,       .     100 

CULPABLE   ACCIDENT. 

CHAPTER  III. 

Negligence 110 

Legal  Conception  op  Negligence  in  General 110 

Degrees  of  Negligence 119 


vin 


CONTENTS. 


Province  of  Court  and  Jury 

Res  Ipsa  Loquitur  . 

Standards  of  Duty 

Master  and  Servant 

Independent  Contractors 
Assumption  of  the  Risk 
Ordinary  Risks 
Employer's  Duty     . 
Extraordinary  Risks 

Contributory  Negligence 

Imputed  Negligence 


PAGS 

124 
132 
138 
163 
163 
166 
166 
177 
187 
203 
208 


MALICE. 

CHAPTER  IV. 

Slander  of  Title ••••*  221 

What  must  be  Proved •••..  221 

Mylice:  Damage 225 

CHAPTER  V. 

Malicious  Prosecution 230 

Malicious  Appeals 230 

Termination  of  the  Prosecution 230 

Want  of  Probable  Cause 247 

Malice 257 

Civil  Suits 259 


PART    II. 


INCULPABLE   MIND. 


Illegal  Acts. 


CHAPTER  VI. 

Abuse  of  Process •       •       •       .  263 

Unwarranted  Attachment •       •      •       •       .  267 

CHAPTER  VII. 

Fai-se  Imprisonment 270 

Nature  of  the  Restraint 270 

Want  of  Jurisdiction  of  Court •       •       .  274 

Defence:   Arrest  without  Warrant         ....•>•  283 

CHAPTER  VIII. 

Assault  and  Uattery 300 

Assault  (without  contact) 300 


CONTENTS.  is 

PAQB 

Battery 301 

Justifiable  Assault 306 

CHAPTER  IX. 

Seduction  and  Enticement 310 

Seduction  of  Minor  Child 310 

Seduction  of  Adult  Child 312 

Mother's  Right 317 

Alienation  op  Affections 319 

CHAPTER  X. 

Procuring  Breach  op  Contract 329 

Nature  of  the  Action 329 

Defence  of  Legal  Right:   Competition 334 

Conception  of  Malice 342 

CHAPTER  XI. 

Procuring  Refusal  to  Contract 34S 

Hindrance:   Competition:   Monopoly 346 

Conspiracy  and  other  Unlawful  Means 362 

Consent  of  Plaintiff 403 

CHAPTER  XII. 

Slander  and  Libel 415 

Legal  Conception  of  Defamation 415 

Meaning  of  Words 420 

Publication 427 

Distinction  between  Slander  and  Libel 436 

Slander  Actionable  Per  Se 436 

Imputations  Conveyed  by  Writing,  Printing  or  Figure;   that  is, 

Libel 449 

Truth  of  the  Charge 453 

Privileged  Communications:   Malice 456 

Criticism 471 

CHAPTER  XIII. 

Trespass 480 

What  Constitutes,  as  to  Realty 480 

What  Constitutes,  as  to  Personalty 482 

Possession 485 

Justification 491 

Trespass  ab  Initio 498 

CHAPTER  XIV. 

conversioti 504 

What  Constitutes 504 

Possession 515 

Rights  against  Transferee  op  Bailee 615 


X  CONTENTS. 

PAGE 

Rights  against  Fraudulent  Vendee        ...               .        .       •  519 

Rights  against  Transferee  of  Fraudulent  Vendee  ....  521 

Rights  against  Transferee  of  Pledgee 526 

Rights  against  Agent  of  Converter 533 

Demand  and  Refusal •       •       .       .  535 

CHAPTER  XV. 

Violation  of  Rights  of  Support 544 

Lateral  Support      544 

Subjacent  Support 550 

CHAPTER  XVI. 

Violation  of  Water  Rights 560 

Usufruct  and  Reasonable  Use  op  Stream 560 

Sub-surface  Water 567 

CHAPTER  XVII. 

Nuisance 585 

What  Constitutes 585 

CHAPTER  XVIII. 

Damage  by  Animals 592 

Knowledge  of  Propensity  to  Injure 592 

Escape  of  Animals 594 

CHAPTER  XIX. 

Escape  op  Dangerous  Things 602 

Nature  of  Protection  required 602 

English  Law 602 

American  Law 608 


PART    III. 

CHAPTER  XX. 

Common  Aspects  op  the  Specific  Torts 622 

1.  Consent -  622 

2.  Justification 626 

3.  Privilege 636 

4.  Capacity 644 

A.  Infants 644 

B.  Insane  Persons 646 

C.  Corporations 652 

6.  Proximate  and  Remote  Cause       .  665 

6.  Special  Damage 684 

Index 699 


CASES  REPORTED. 


A. 

Adams  v.  Bicknell     .       .       .  252 

V.  Rivers         .       .       .  500 

Allen  v.  Ashton  ....  524 

V.  Wright        .       .       .  297 

Allday,  Lumby  v.  .  .  .  447 
American  Tel.  &  Tel.  Company, 

Wilcox  v 79 

American     Waltham     Watch 

Company  v.  United  States 

Watch  Company  ...  97 

Amory  v.  Delamirie  .  .  .  515 
Andrecsik  v.  New  Jersey  Tube 

Company  .  .  .  .194 
Arms,     Milwaukee,     &c.     Ry. 

Company  v 119 

Armstead,  Gurley  v.         .       .  533 

Armstrong,  Mills  v.  .       .       .  208 

Arnold,  Campbell  v.         .       .  485 

Ashton,  Allen  v.       .       .       .  524 

B. 

Bacon    v.    Michigan    Central 

Railroad        ....  456 

Bank   op   Stockton,  Eastin  v.  259 

Barry,  Slayton  v.      .        .        .  644 

Bartsch,  Noblett  v.  .        .        .  249 

Beach,  Scribner  v.     .       .       .  633 

Beekman  v.  Marsters        .        .  334 

Benedick  v.  Potts      .        .        .  133 

Berry  v.  Donovan      ,        .        .  355 

Bicknell,  Adams  v.    ,       .        .  252 

BiGBY  V.  United  States    .       .  4 

Billings,  Marsh  v.     ,       .       .  100 

Bird  v.  Jones  ....  270 
Birkett,  Tindle  V,     .        .        .83 

Bishop  v.  Small  ....  58 

Blanchard,  Thurston  v.          .  519 

BoADLE,  Byrne  v.        .        .        .  132 

Boomer  v.  Wilbur     .       .       .  163 


Boston,  Hill  v.  . 

Boston    &    Worcester    Rail- 

pagb 
652 

road  Corporation  v.  Dana 
Boston    &    Worcester    Rail- 

9 

road    Corporation, 

Far- 

WELL    V     . 

Boston     Protective     Depart- 

170 

ment,  Newcomb  v. 

668 

Bott  v.  Pratt 

15 

Boughton,  Savacool  v. 

275 

Boyd  v.  Fire  Insurance  Patrol 
BoYLSTON  Market  Association 

660 

KiRBY   V.           .         .         . 

Brennan  v.  United  Hatters 

13 
403 

Bristol  v.  Burt 

512 

Brockett     v.     Fairhaven     & 

Westville  Railroad 

COM- 

pany 
Brogden,  Humphries  v. 

203 
550 

Brooker  v.  Coffin 
Brown,  Frazier  v. 

436 
567 

V.  Kendall 

301 

V.  Manter 

480 

Buchanan,  Losee  v. 
Burdett,  May  v. 

608 
592 

Burt,  Bristol  v. 
Burt,  Wilmarth  v. 

512 

283 

Burton,  Driggs  v. 
Byrne  v.  Boadlb 

241 
132 

c. 


Campbell  v.  Arnold  .       .       .  485 
V.  Race       .        .        .  626 
Carson,  Merivalb  v.  .       .       .  471 
Castles  u.  Corn  Exchange  Bank  53  7 
Central    Congregational    So- 
ciety, Davis  v.     .        .        .  159 
Chicago,    &c.    Railway    Com- 
pany, Elliott  v.  .       .       .129 


xu 


CASES  REPORTED. 


City  op  North  Vernon,  Voe- 


GLER    V 

25 

Clark,  McCully  v.      .       .       . 

138 

Coffin,  Brooker  v.     .        .        . 

436 

CoLBURN,  Enfield  v.  . 

89 

Cole  v.  Turner   .... 

301 

CoMSTOCK,  Drew  v. 

306 

Consolidated  Coal  Coaipany  v. 

Haenni 

177 

Cooper  v.  Greeley     . 

415 

Corn  Exchange  Bank,  Castles 

V 

537 

Coultas,   Victorian  Railways 

Commissioners  v. 

695 

Cowley  v.  Smyth 

70 

Crown  v.  Orr      .... 

166 

CUTTS,    SWETT    V 

578 

V.  Spring  .... 

488 

COM- 


D. 

Dames,  Indermatjr  v. 

Dana  v.  Boston  &  Worcester 
Railroad  Corporation 

Davis  v.  Central  Congrega- 
tional Society 

Davis  v.  Shepstone 

Dawe  v.  Morris  . 

Dawson,  Graves  v. 

Deane,  Murphy  v. 

Decker  v.  Gammon 

Delamirie,  Amory  v. 

Dennis,  Henry  v. 

Denniston,  So'jth  v. 

Derry,  Peek  v.    . 

DiLTS,  Watson  v. 

Donald  v.  Suckling 

Donovan,  Berry  v. 

Drew  v.  Comstock 

Driggs  v.  Burton 

Duxbury,  Hunnewell  v. 

E. 

Eastin  v.  Bank  of  Stockton     . 

Elliot  v.  Fitchburg  Railroad 
Company         .... 

Elliott  v.  Chicago,  &c.  Rail- 
way Company 

Ellis  v.  Loftus  Iron  Company 


152 


159 

476 
1 
233 
679 
598 
515 

81 
317 

60 
693 
526 
356 
306 
241 

86 


259 

562 

129 
594 


Emmens  v.  Pottle 
Emry  v.  Roanoke,  &c. 

PANY 

Enfield  v.  Colbuun  . 
Evans,  Ratcliffe  v.  . 
Everett  v.  Henderson 

F. 

Fairhaven  &  Westville  Rail- 
road Company,  Brockett  v. 

Farwell  v.  Boston  &  Worces- 
ter Railroad  Corporation 

Fire  Insurance  Patrol,  Boyd 
V 

Fitchburg  Railroad  Company, 
Elliot  v. 

Fletcher,  Rylands  v. 

Foster,  Kirby  v. 

fottler  v.  moseley  . 

FouLDES  V.  Willoughby 

Frazier  v.  Brown 

Freeman,  Pasley  v.   . 

Freeman  v.  Venner   . 

Fuller  v.  Huff  . 


PAGE 

433 

110 

89 
684 
286 


203 

170 

660 

562 

602 

630 

90 

504 

567 

31 

93 

105 


G. 

Galbraith  v.  West  End  Street 

Railway  Company       .       .  122 

Gambrill  v.  Schooley       .       .  427 

Gammon,  Decker  v.    .       .       .  598 

Gile,  Sargent  v.         ...  515 
Glamorgan   Coal   Company    v. 

Miners'  Federation   .       .  342 
Globe     Publishing     Company, 

Hanson  v 420 


Gold  nam  ER  v.  O'Brien      .       .     623 

GOTT    V.    PULSIFER 

.     225 

Grainger  v.  Hill 

.     263 

Graves  v.  Dawson 

.        .     233 

V.  Scott  . 

.     236 

Greeley,  Cooper  v. 

.     415 

Gurley  v.  Armstead 

.        .     533 

Gye,  Lumley  v.    . 

.    329 

H. 


Haenni,     Consolidated     Coal 

Company  v 177 


CASES    REPORTED 


XIU 


PAGE 

Hall,  Murray  v. 

489 

Hancock,  Thurston  v. 

544 

Hankins  v.  Watkins  . 

116 

Hanson   v.  Globe   Publishing 

Company 

420 

Harding,  Mahurin  v. 

39 

Harris,  Springfield  v. 

560 

Hastings  v.  Lusk 

464 

Hauck  v.  Tidewater  Pipe  Line 

Company 

585 

Hays,  Williams  v. 

646 

Haythorn  v.  Rushforth  . 

482 

Henderson,  Everett  v.    . 

286 

Henderson  &  Co.  v.  Williams 

521 

Henry  v.  Dennis 

81 

Hill  v.  Boston    . 

652 

Hill,  Grainger  v. 

263 

Hodges,  Rosum  v. 

535 

Hogg  v.  Ward 

295 

Huff,  Fuller  v.  . 

105 

Huffman,  Sutton  v. 

312 

Hughes,  Smith  v. 

46 

Humphries  v.  Brogden 

550 

Hunnewell  v.  Duxbury  . 

86 

Hutchinson,  Litchfie 

LD    V. 

67 

Indermaur  v.  Dames 


Jackson,  Sheckell  v. 
Jones,  Bird  v. 
Jones,  McLeod  v. 


152 


462 
270 
494 


K. 

Kain  v.  Old 44 

Kendall,  Brown  v.    .       .       .  301 

Kerry,  Thorley  v.     .        .        .  449 
King,    Singer   Manufacturing 

Company  v 541 

KiRBY     V.    Boylston    Market 

Association   ....  13 

KiRBY  V.  Foster  ....  630 

Kite,  Rider  v 230 

Klingel's  Pharmacy  v.  Sharp  .  396 
KuELLiNG  V.  Lean  Manufactur- 
ing Company         .       .       .51 


L. 

Lamb  v.  Stone     ....  20 
Land    &   House   Corporation, 

Smith  v.          ....  53 
Lean  Manufacturing  Company, 

kuelling  v.  ...  51 
Leathem,  Quinn  v.  .  .  .  362 
Lesan  v.  Maine  Central  Rail- 
road Company  .  .  .  206 
Litchfield  v.  Hutchinson  .  67 
LoFTUs  Iron  Company,  Ellis  v.  594 
LosEE  V.  Buchanan  .  .  .  608 
Lumby  v.  Allday  .  .  .  447 
LuMLEY  V.  Gye  ....  329 
LusK,  Hastings  v.  .  .  ,  464 
Lynn  &  Boston  Railroad  Com- 
pany, Spade  v.  .  .  .  689 
Lyon,  Pollard  v.        .       .       .437 


M. 


39 


Mahurin  v.  Harding 
Maine  Central  Railroad  Com- 
pany, Lesan  v.  .  .  .  206 
Malachy  v.  Soper  .  .  .  221 
Malcolm  v.  Spoor  .  .  .  498 
Manchester,  Spooner  v.  .  .  508 
Manchester  Street  Railway, 

Warren  v 214 

Manter,  Brown  v.      .       .       .  480 

Marsters,  Beekman  v.       .        .  334 

Marsh  v.  Billings      .       .       .  100 
Martin  v.  Payne         .       .       .310 

Mathis,  Vanderbilt  v.      .        .  257 

May  v.  Burdett  ....  592 

McCuLLY  V.  Clark       .        ,        .  138 
McGregor,    Mogul    Steamship 

Company  v 346 

McLeod  v.  Jones         .       .       .  494 

McPhee  v.  Scully      .       .       .  184 

Merivale  v.  Carson   .       .       .  471 
Michigan    Central    Railroad 

Company,  Bacon  v.     .       .  456 
Mills  v.  Armstrong    .        .        .  208 
Milwaukee,  &c.  Railway  Com- 
pany V.  Arms        .       .       .  119 
Miners'  Federation,    Glamor- 
gan Coal  Company  v.        .  342 


XIV 


CASES   REPORTED. 


Mogul    Steamship   Company  v 

McGregok 

346 

Morris,  Dawe  v. 

1 

MOSELEY,    FOTTLER    V.  . 

90 

Murphy  v.  Deane 

679 

Murray  v.  Hall  . 

489 

Myers,  Stephens  v.    . 

300 

N. 


619 


668 
491 

194 


New  Bedford,  Wilson  v. 

Newcomb  v.  Boston  Protec- 
tive Department 

Newkirk  v.  Sabler    . 

New  Jersey  Tube  Company, 
Andrecsik  v.         ... 

New  York  Railroad  Company, 

Powers  v 191 

Noblett  v.  Bartsch  .       .       .     249 


O. 

O'Brien,  Goldnamer  v.     .       .  623 

Old,  Kain  v 44 

Oldham,  Peake  v.       .        .        .  425 

Olmstead  v.  Partridge     ,        .  256 
O'Maley  v.  South  Boston  Gas 

Light  Company     .       .       .187 

Orr,  Crown  v 166 


Partridge,  Olmstead  v.  .  .  256 
Pasley  v.  Freeman  .  .  .31 
Patton  v.  Texas,  &c.  Railway 

Company  ....  124 
Payne,  Martin  v.  .  .  .310 
Peake  v.  Oldham  .  .  .  425 
Peek  v.  Derry  ....  60 
Pennsylvania  Railroad  Com- 
pany, Weiss  v.  .  .  .  204 
Perry  v.  Porter  .  .  .  453 
Pickett  v.  Walsh  .  .  .  383 
PoLi^RD  V.  Lyon  .  .  .  437 
Porter,  Perry  v.  .  .  .  453 
Potomac,  Etc.  Railroad  Com- 
pany, Walker  v.  .  .  145 
ParTLE,  Emmens  v.  .  .  .  433 
Potth,  Benedick  v.     .       .       .  133 


paob 
Powers  v.  New  York  Railroad 

Company         ....     191 

Pratt,  Bott  v 15 

Price  v.  Seibert  .        .        .     247 

pulsifer,  gott  v.       .       .       .    225 


Q. 

QuiNN  V.  Leathem 


.    362 


R. 


Race,  Campbell  v.      .       .       .  626 

Railroad  Company,  Scheffer  v.  665 

Ratcliffe  v.  Evans    .       .       .  684 

Rice,  Zinn  v 267 

Rider  v.  Kite       ....  230 

Rivers,  Adams  v.        .       .       .  500 

Roanoke,  Etc.,  Co.,  Emry     v.  110 

RosuM  V.  Hodges        .       .       .  535 

Rushforth,  Haythorn  v.         .  482 

Rylands  v.  Fletcher        .       .  602 


S. 

Sabler,  Newkirk  v.  .  .  .  401 
Sargent  v.  Gile  .  .  .  515 
Savacool  v.  Boughton  .  .  275 
Schooley,  Gambrill  v.  .  .  427 
Scheffer  v.  Railroad  Company  665 
Scully,  McPhee  v.  .  .  .  184 
Scott,  Graves  v.  ...  236 
ScRiBNER  V.  Beach  .  .  .  633 
Seibert,  Price  v.  .  .  .  247 
Sharp,  Klingel's  Pharmacy  v.  396 
Sheckell  v.  Jackson  .  .  .  462 
Shepstone,  Davis  v.  .  .  .  476 
Shinglemeyer  v.  Wright  .  .  622 
Singer  Manufacturing  Com- 
pany V.  King  .  .  .  541 
Slayton  v.  Barry  .  .  .  644 
Small,  Bishop  v.  ...  58 
Smallwood,  West  v.  .  .  274 
Smith  v.  Hughes  ...  46 
Smith  v.  Land  &  House  Cor- 
poration ....  53 
Smyth,  Cowley  v.  ...  70 
SoPER,  Malachy  v.  .  .  .  221 
South  v.  Denniston  .       .       .  317 


CASES   REPORTED. 


XV 


South  Boston  Gas  Light  Com- 
pany, O'Maley  v.  .  .  187 
Spade,  Lynn  &  Boston  Rail- 
road Company  v.  .  .  689 
Spalding  v.  Vilas  .  .  .  636 
Spooner  v.  Manchester  .  .  508 
Spoor,  Malcolm  v.      .       .       .  498 

Spring,  Cutts  v 488 

Springfield  v.  Harris       .       .  560 

Stephens  v.  Myers     .        .        .  300 
St.  Helen's  Smelting  Company 

V.  Tipping      ....  587 

Stone,  Lamb  v.            ...  20 

Suckling,  Donald  v.  .       .       .  526 

Sutton  v.  Huffman    .       .       .  312 

Swett  v.  Cutts    ....  578 

Sykes  v.  Sykes     ....  96 


T. 


675 


Terwilliger  v.  Wands 
Texas,  &c.  Railway  Company, 

Patton  V 124 

Thorley  v.  Kerry      .       .       .  449 

Thurston  v.  Blanchard    .       .  519 

V.  Hancock       .       .  544 
Tidewater  Pipe  Line  Company, 

Hauck  V 585 

Tindle  v.  Birkett      ...  83 
Tipping,  St.  Helen's  Smelting 

Company  v 587 

ToBEY  V.  Webster      .        .        .  485 
Toy     v.    United   States    Car- 
tridge Company  .       .       .  182 
Turner,  Cole  v 301 

U. 

United  Hatters,    Brennan   v.     403 
United  States,  Bigby  v.  .        .         4 
United  States  Cartridge  Com- 
pany, Toy  v.         .        .        .     182 
United    States    Watch    Com- 
pany, American  Waltham 
Watch  Company  v.     .       .97 


PA<)K 


Vanderbilt  v.  Mathis  .  .  257 
Venner,  Freeman  v.  .  .  .93 
Victorian  Railways  Commis- 
sioners V.  CouLTAS  .  .  695 
Vilas,  Spalding  v.  .  .  .  636 
Voegler    v.    City    op    North 

Vernon 25 

W. 

Walker,    Adm'r.  v.    Potomac, 

Etc.   Railroad  Company  .  145 

Walsh,  Pickett  v.      .       .       .  383 

Wands,  Terwilliger  v.     .       .  675 

Ward,  Hogg  v.     .        ,        ,        .  295 
Warren  v.  Manchester  Street 

Railway  ....  214 
Watkins,  Hankins  v.  .  .116 
Watson  v.  Dilts  .  .  .  693 
Webster,  Tobey  v.  .  .  .  485 
Weiss  v.  Pennsylvania  Rail- 
road Company  .  .  .  204 
West  v.  Smallwood  .  .  .  274 
West    End    Street    Railway 

Company,  Galbraith  v.     .  122 

Westlake  v.  Westlake            .  319 

Wilbur,  Boomer  v.     .       .       .  163 
Wilcox    v.   American   Tel.    & 

Tel.  Company       ...  79 

Williams  v.  Hays       .       .       .  646 

Williams,  Henderson  &  Co.  v.  521 

Willoughby,  Fouldes  v.  .       .  504 

Wilmarth  v.  Burt      .        .        .  283 

Wilson  v.  New  Bedford  .       .  619 

Wright,  Allen  v.       .       .       .  297 

Wright,  Shinglemeyer  v.        .  622 


Z. 


ZiNN  V.  Rice 


.    267 


STATUTE   REPORTED 
Statute  of  Malicious  Appeals    230 


CASES  ON  TORTS. 


INTRODUCTION 

DA  WE  V.  MOREIS. 
Supreme  Court  of  Massachusetts,  May,  1889.     149  Mass.  188. 

Tort.  The  first  count  of  the  declaration  was  as  follows :  "  And 
the  plaintiff  says  that  the  defendant,  in  order  to  induce  the  plaintiff  to 
make  a  contract  with  the  Florida  Midland  Eailway  Company  for  the 
building  of  about  thirty  miles  of  the  Florida  Midland  Eailway  in 
Florida,  falsely  represented  that  he,  said  Morris,  and  one  Page  had 
purchased  certain  rails  sufficient  to  build  a  certain  number  of  miles 
of  railroad,  to  wit,  thirty  miles,  at  a  certain  sum  per  ton,  to  wit,  the 
sum  of  eighteen  dollars  less  freight  to  New  York,  and  that,  if  said 
plaintiff  would  make  a  contract  with  said  company  for  building  said 
part  of  said  railway,  they,  said  defendant  and  said  Page,  would  sell 
those  said  rails  already  purchased  by  them  to  the  plaintiff  at  said 
price  per  ton;  and  the  plaintiff,  believing  said  representations  were 
true,  was  thereby  induced  to  enter  into  a  contract,  and  did  enter  into 
a  contract  with  said  company  for  the  construction  of  about  thirty 
miles  of  said  railroad,  and  entered  upon  the  performance  of  said  con- 
tract with  said  railway  company;  and  said  Page  and  said  defendant 
had  not  then  purchased  said  rails,  or  any  part  of  them,  which  the 
defendant  then  knew,  and  therefore  did  not  sell,  and  did  not  intend 
to  sell,  said  rails  already  purchased  by  them  to  the  plaintiff;  and  by 
reason  of  the  said  contract  made  by  the  plaintiff  with  said  railway 
company,  which  said  contract  said  plaintiff  was  induced  to  enter  into 
by  reason  of  the  false  and  fraudulent  representations  of  the  defendant 
as  aforesaid,  said  plaintiff  was  obliged  to  purchase,  and  did  pur- 
chase, a  large  number  of  rails,  to  wit,  rails  sufficient  to  build  about 
twenty-two  miles  of  railroad,  and  to  pay,  and  did  pay,  therefor  a 
large  sum,  to  wit,  the  sum  of  forty  dollars  per  ton,  and  was  also  by 
reason  thereof  obliged  to  purchase,  and  did  purchase,  a  large  number 
of  rails,  to  wit,  rails  sufficient  to  build  about  eight  miles  of  railroad, 
and  to  pay  therefor,  and  did  pay  therefor,  a  large  sum,  to  wit,  the 
sum  of  twenty-four  dollars  per  ton;  that  said  plaintiff,  relying  upon 
the  representations  of  the  defendant  as  aforesaid,  had  entered  upon 
the  performance  of  his  said  contract  with  said  railway  company,  and 
that  by  the  reason  of  the  failure  of  said  defendant  to  furnish  said 

1 


2  DAWE   V.   MORRIS. 

rails,  said  plaintiff  was  greatly  damaged  before  he  discovered  that 
said  defendant  had  not  purchased  said  rails." 

The  second  count  of  the  declaration  alleged  that  the  defendant  had 
"  converted  to  his  own  use  a  number  of  bonds,  to  wit,  thirty-three,  of 
the  Florida  Midland  Railway  Company,  of  the  par  value  of  one  thou- 
sand dollars  each,  the  said  bonds  being  the  property  of  the  plaintiff." 

The  defendant  demurred  to  the  first  count,  on  the  ground  that  the 
declaration  did  not  set  forth  a  legal  cause  of  action. 

The  Superior  Court  sustained  the  demurrer,  and  ordered  judgment 
for  the  defendant ;  and  the  plaintiff  appealed  to  this  court. 

Devens,  J.  The  alleged  misrepresentations  of  the  defendant,  by 
which  the  plaintiff  avers  that  he  was  induced  to  enter  into  a  contract 
for  building  thirty  miles  of  the  Florida  Midland  Railway,  are  that 
the  defendant  had  purchased  a  certain  quantity  of  rails  at  a  certain 
price,  and  that  he  would  sell  those  rails  to  the  plaintiff  at  the  same 
price  if  he  would  make  such  contract.  The  plaintiff's  declaration 
alleges  that  the  defendant  had  not  then  purchased  the  rails,  and  did 
not  sell,  and  did  not  intend  to  sell,  any  rails  so  purchased  to  the 
plaintiff;  and  that  by  reason  of  the  contract  into  which  the  plaintiff 
was  induced  to  enter,  he  was  obliged  to  purchase  a  large  number  of 
rails  at  a  much  higher  price  than  that  named  by  the  defendant,  to 
his  great  injury.  If  the  formalities  required  by  law  in  order  that 
contracts  for  the  sale  and  delivery  of  goods  of  the  value  here  in  ques- 
tion had  been  complied  with,  that  these  facts  would  constitute  a  con- 
tract upon  a  valuable  consideration,  will  not  be  questioned.  The 
plaintiff  does  not  seek  to  recover  upon  this  contract,  but  in  an  action 
of  tort  in  the  nature  of  deceit,  because  he  was  induced  to  enter  into 
the  contract  with  the  Florida  Railway  Company  by  reason  of  the 
representations  above  set  forth. 

A  representation,  in  order  that,  if  material  and  false,  it  may  form 
the  ground  of  an  action  where  one  has  been  induced  to  act  by  reason 
thereof,  should  be  one  of  some  existing  fact.  A  statement  promissory 
in  its  character  that  one  will  thereafter  sell  goods  at  a  particular 
■price  or  time,  will  pay  money,  or  do  any  similar  thing,  or  any  assur- 
ance as  to  what  shall  thereafter  be  done,  or  as  to  any  further  event, 
is  not  properly  a  representation,  but  a  contract,  for  the  violation  of 
which  a  remedy  is  to  be  sought  by  action  thereon.  The  statement 
by  the  defendant  that  he  would  thereafter  sell  rails  at  a  particular 
price  if  the  plaintiff  would  contract  with  the  railway  company  was 
a  promise,  the  breach  of  which  has  occasioned  the  injury  to  the 
plaintiff.    Knowlton  v.  Keenan,  146  Mass.  86. 

The  plaintiff  contends  that,  even  if  this  is  so,  the  representation 
that  the  defonflant  had  thus  purchased  the  rails  at  the  price  named 
was  material  and  false;  but  if  the  allegation  that  the  defendant  had 
purchased  the  rails  be  separated  from  that  of  the  promise  to  sell  them 
to  the  plaintiff,  it  is  seen  at  once  to  be  quite  unimportant  and  im- 


INTRODUCTION.  3 

material.  Had  the  defendant  actually  sold,  or  had  he  been  ready  to 
sell,  the  rails  at  the  time  and  price  he  promised  that  he  would,  no 
action  could  have  been  maintained  by  reason  of  any  false  representa- 
tion that  he  had  purchased  them  when  he  made  his  promise,  and  no 
possible  injury  could  thereby  have  resulted  to  the  plaintiff. 

It  is  urged  that,  independent  of  any  promise  to  sell  to  him,  if  the 
plaintiff  had  believed  that  the  defendant  had  purchased  rails  at  the 
price  at  which  he  said  he  had  purchased  them,  the  plaintiff  might 
thus  have  been  induced  to  believe  that  he  himself  could  thereafter 
purchase  them  at  the  same  price.  But  the  injury  from  a  false  repre- 
sentation must  be  direct,  and  the  probability  or  possibility  that,  be- 
cause the  defendant  had  purchased  at  a  particular  price,  the  plaintiff 
would  be  able,  or  might  believe  himself  to  be  able,  to  do  so  also,  is 
too  remote  to  afford  any  ground  for  action. 

It  must  be  shown,  not  only  that  the  defendant  has  committed  a 
tort  and  that  the  plaintiff  has  sustained  damage,  but  that  the  damage 
is  the  clear  and  necessary  consequence  of  the  tort,  and  such  as  can 
be  clearly  defined  and  ascertained.  Lamb  v.  Stone,^  11  Pick.  527. 
Bradley  v.  Fuller,  118  Mass.  239.  Quite  a  different  case  would  be 
presented  if  the  defendant  had  falsely  represented  to  the  plaintiff,  if 
unskilled  in  the  price  of  rails,  what  their  market  value  then  was,  and 
what  was  the  price  at  which  they  could  then  be  purchased. 

It  is  also  said,  that  if  the  plaintiff  believed  that  the  defendant  had 
actually  purchased  the  rails,  at  the  time  of  the  transaction,  and  that 
if  he  knew  that  the  completion  of  the  railroad  was  of  vital  importance 
to  the  interests  of  the  defendant,  he  would  more  readily  have  confided 
in  the  defendant's  promise  to  sell  them,  and  thus  that  this  representa- 
tion was  material.  But  in  order  that  a  false  representation  may 
form  the  foundation  of  an  action  of  deceit,  it  must  be  as  to  some 
subject  material  to  the  contract  itself.  If  it  merely  affect  the  prob- 
ability that  it  will  be  kept,  it  is  collateral  to  it.  "  Eepresentations 
as  to  matters  which  are  merely  collateral,  and  do  not  constitute 
essential  elements  of  the  contract  into  which  the  plaintiff  is  induced 
to  enter,  are  not  sufficient."    Hedden  v.  Griffin,  136  Mass.  229. 

Whether  the  allegation  as  to  the  purchase  of  the  rails  by  the 
defendant  was  material  was  a  question  for  the  court,  which  was  to 
construe  the  contract,  and  determine  its  legal  effect  on  the  duties 
and  liabilities  of  the  parties.  It  was  for  it  to  determine  (there  being 
on  the  declaration  of  the  plaintiff  no  dispute  as  to  the  facts)  whether 
the  alleged  misrepresentations  were  material,  and  such  as  would 
invalidate  the  contract  or  form  the  foundation  of  an  action  of  tort. 
Penn  Ins.  Co.  v.  Crane,  134  Mass.  56. 

The  plaintiff  further  contends  that,  as  when  goods  have  been 
obtained  under  the  form  of  a  purchase  with  the  intent  not  to  pay 
for  them,  the  seller  may,  on  discovery  of  this,  rescind  the  contract 

1  Post,  p.  20. 


4  BIGBY   V.    UNITED    STATES. 

and  repossess  himself  of  the  goods  as  against  the  purchaser  or  any 
one  obtaining  the  goods  from  him  with  notice  or  without  consideration, 
an  action  of  tort  should  be  maintained  on  an  unfulfilled  promise 
which,  at  the  time  of  making,  the  promisor  intended  not  to  perform, 
by  reason  of  which  non-performance  the  plaintiff  has  suffered  injury 
in  having  been  induced  to  enter  into  a  contract  which  depended  for 
its  successful  and  profitable  performance  upon  the  performance  by 
the  defendant  of  his  promise. 

Assuming  that  the  plaintiff's  declaration  enables  him  to  raise  this 
question,  which  may  be  doubted,  as  the  averment  that  "  said  defend- 
ant had  not  then  purchased  said  rails,  or  any  part  of  them,  which 
the  defendant  then  knew,  and  therefore  did  not  sell,  and  did  not 
intend  to  sell,  said  rails  already  purchased  by  them  to  the  plaintiff," 
is  not  an  averment  that  the  defendant  intended  not  to  perform  his  con- 
tract, there  is  an  obvious  difference  between  the  case  where  a  contract 
is  rescinded,  and  thus  ceases  to  exist,  and  one  in  which  the  injury 
results  from  the  non-performance  of  that  which  it  is  the  duty  of  the 
defendant  to  perform,  and  where  there  is  no  other  wrong  than  such 
non-performance.  To  term  this  a  tort  would  be  to  confound  a  cause 
of  action  in  contract  with  one  in  tort,  and  would  violate  the  policy 
of  the  statute  of  frauds  by  relieving  a  party  from  the  necessity  of 
observing  those  statutory  formalities  which  are  necessary  to  the 
validity  of  certain  executory  contracts. 

It  was  not  disputed  that  the  plaintiff's  declaration  sets  forth  in  the 
second  count  a  good  cause  of  action.  The  result  is,  that  as  to  the 
first  count  the  entry  must  be. 

Judgment  for  the  defendant  affirmed. 


BIGBY  V.  UNITED  STATES. 
Supreme  Court  of  United  States,  October,  1902.     188  U.  S.  400. 

BiGBY,  the  plaintiff  in  error,  claimed  in  his  petition  to  have  been 
damaged  to  the  extent  of  ten  thousand  dollars  on  account  of  certain 
personal  injuries  received  by  him  while  entering  an  elevator  placed 
by  the  United  States  in  its  court-house  and  post-office  building  in 
the  city  of  Brooklyn,  and  asked  judgment  for  that  sum  against  the 
Government. 

The  petition  was  demurred  to  upon  three  grounds,  namely,  that  the 
court  had  no  jurisdiction  of  the  person  of  the  defendant,  or  of  the 
subject  of  the  action,  and  lliat  the  petition  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action  against  the  United  States- 

''I'he  demurrer  was  sustained  by  the  Pircuit  Court  on  each  of  the 
grounds  specified,  and  so  far  as  it  was  sustained  upon  the  ground 


INTRODUCTION.  5 

that  the  petition  did  not  state  a  cause  of  action,  it  was  sustained 
because  the  action  was  not  authorized  by  the  act  of  Congress  known 
as  the  Tucker  Act,  approved  March  3,  1887,  c.  359,  and  entitled  "  An 
act  to  provide  for  the  bringing  of  suits  against  the  Government  of  the 
United  States."  24  Stat.  505.  The  action  was  accordingly  dismissed. 
103  Fed.  Eep.  597. 

The  specific  allegations  of  the  petition  are  — 

That  the  United  States  is  a  corporation  created  by  the  Constitution 
with  its  principal  office  in  Washington,  and  within  the  meaning  of  the 
New  York  Code  of  Civil  Procedure  is  a  foreign  corporation; 

That  on  or  about  November  27,  1899,  the  petitioner,  while  on  his 
way  to  the  office  of  the  Marshal  of  the  United  States  for  the  Eastern 
District  of  New  York,  and  at  the  request  of  the  United  States,  and  of 
its  officers,  employees  and  duly  authorized  agents,  each  acting  within 
the  scope  of  his  authority,  entered  into  a  passenger  elevator  in  the 
United  States  court-house  and  post-office  building  in  Brooklyn,  which 
building  and  elevator  was  owned  and  controlled  by  the  United  States, 
and  was  designed  and  intended  by  it  for  the  use  of  persons  on  their 
way  to  the  office  of  its  said  Marshal; 

That  the  United  States  "  then  and  there  entered  into  an  implied 
contract "  with  the  petitioner,  "  wherein  and  whereby,  for  a  sufficient 
valuable  consideration,  it  agreed  to  carry  your  petitioner  safely,  to 
operate  said  elevator  with  due  care,  and  to  employ  for  the  purposes 
of  the  operation  of  said  elevator  a  competent  and  experienced  per- 
son ; " 

That  in  "  violation  of  said  contract,  the  United  States  failed  to 
carry  the  petitioner  safely,  or  to  operate  the  elevator  with  due  care, 
or  to  employ  for  the  operation  and  to  put  in  charge  of  such  elevator 
a  competent  and  experienced  person,  and  violated  its  contract  with 
the  petitioner  in  other  ways ; "  and. 

That  in  consequence  of  said  failures,  respectively,  the  petitioner, 
"  while  entering  the  said  elevator  without  negligence  on  his  part  was 
caused  to  fall  and  his  foot,  ankle  and  leg  were  crushed  between  said 
elevator  and  the  top  of  the  entrance  into  the  elevator  shaft  or  a  pro- 
jection in  the  shaft  of  said  elevator  or  in  some  other  manner  and  the 
back  of  your  petitioner  and  other  parts  of  the  body  of  your  petitioner 
were  also  consequently  injured  and  your  petitioner  consequently 
suffered  a  laceration  of  the  ligaments  of  his  ankle  and  he  conse- 
quently was  caused  much  bodily  and  mental  pain." 

Mr.  Justice  Harlan.  This  being  an  action  against  the  United 
States,  the  authority  of  the  Circuit  Court  to  take  cognizance  of  it 
depends  upon  the  construction  of  the  above  act  of  March  3,  1887.  24 
Stat.  505. 

By  that  act  it  is  provided  that  the  Court  of  Claims  shall  have 
jurisdiction  to  hear  and  determine  "  all  claims  founded  upon  the 
Constitution  of  the  United  States  or  any  law  of  Congress,  except  for 


6  BIGBY    V.    UNITED   STATES- 

pensions,  or  upon  any  regulation  of  an  Executive  Department  or 
upon  any  contract,  expressed  ^  or  implied,  with  the  Government  of  the 
United  States,  or  for  damages,  liquidated  or  unliquidated,  in  cases 
not  sounding  in  tort,  in  respect  of  which  claims  the  party  would  be 
entitled  to  redress  against  the  United  States  either  in  a  court  of  law, 
equity,  or  admiralty  if  the  United  States  were  suable:  Provided, 
however.  That  nothing  in  this  section  shall  be  construed  as  giving 
to  either  of  the  courts  herein  mentioned,  jurisdiction  to  hear  and 
determine  claims  growing  out  of  the  late  civil  war,  and  commonly 
known  as  '  war  claims,'  or  to  hear  and  determine  other  claims,  which 
have  heretobefore  been  rejected,  or  reported  on  adversely  by  any 
court.  Department,  or  commission  authorized  to  hear  and  determine 
the  same."  The  act  further  provided  that  "  the  District  Courts  of 
the  United  States  shall  have  concurrent  jurisdiction  with  the  Court 
of  Claims  as  to  all  matters  named  in  the  preceding  section  where  the 
amount  of  the  claim  does  not  exceed  one  thousand  dollars,  and  the 
Circuit  Courts  of  the  United  States  shall  have  such  concurrent  juris- 
diction in  all  cases  where  the  amount  of  such  claim  exceeds  one  thou- 
sand dollars  and  does  not  exceed  ten  thousand  dollars." 

It  is  clear  that  the  act  excludes  from  judicial  cognizance  any  claim 
against  the  United  States  for  damages  in  a  case  "  sounding  in  tort." 
But  the  contention  of  the  plaintiff  is,  in  substance  that  although 
the  facts  constituting  the  negligence  of  which  he  complains,  made  a 
case  of  tort,  he  may  waive  the  tort;  that  his  present  claim  is  founded 
upon  an  implied  contract  with  the  Government,  whereby  it  agreed  to 
carry  him  safely  in  its  elevator,  to  operate  the  elevator  with  due  caro, 
and  to  employ  for  the  purposes  of  such  carriage  a  competent  and 
experienced  person;  and,  consequently,  that  his  suit  is  embraced  by 
the  words  "  upon  any  contract,  express  ^  or  implied,  with  the  Govern- 
ment of  the  United  States."  The  contention  of  the  United  States  is 
that  no  such  implied  contract  with  the  Government  arose  from  the 
plaintiff's  entering  or  attempting  to  enter  and  use  the  elevator  in 
question,  and  that  the  claim  is  distinctly  for  damages  in  a  case 
"  sounding  in  tort,"  of  which  the  act  of  Congress  did  not  authorize 
the  Circuit  Court  to  take  cognizance. 

Can  the  plaintiff's  cause  of  action  be  regarded  as  founded  upon 
implied  contract  with  the  Government,  within  the  meaning  of  the 
act  of  1887? 

The  precise  question  thus  presented  has  not  been  determined  by 
this  court.  But  former  decisions  may  be  consulted  in  order  to  ascer- 
tain whether  this  suit  is  embraced  by  the  words,  in  that  act,  "  upon 
any  contract,  express  or  implied,  with  the  Government  of  the  United 
States."  Do  those  words  include  an  action  against  the  United  States 
to  recover  damages  for  personal  injuries  caused  by  the  negligent  man- 
agement of  an  elevator  erected  and  maintained  by  it  in  one  of  its 
court-house  and  post-office  buildings? 

»  sir. 


INTRODUCTION.  7 

[After  considering  the  cases  of  Gibbons  v.  United  States,  8  Wall. 
269,  Langford  v.  United  States,  101  U.  S.  341,  Hill  v.  United  States, 
149  U.  S.  593,  Eobertson  v.  Sichel,  127  U.  S.  507,  Schillinger  v. 
United  States,  155  U.  S.  163,  the  court  continued:] 

It  thus  appears  that  the  court  has  steadily  adhered  to  the  general 
rule  that,  without  its  consent  given  in  some  act  of  Congress,  the 
Government  is  not  liable  to  be  sued  for  the  torts,  misconduct,  mis- 
feasances or  laches  of  its  officers  or  employees.  There  is  no  reason 
to  suppose  that  Congress  has  intended  to  change  or  modify  that  rule. 
On  the  contrary,  such  liability  to  suit  is  expressly  excluded  by  the  act 
of  1887. 

Cases  of  this  kind  are  to  be  distinguished  from  those  in  which 
private  property  was  taken  or  used  by  the  officers  of  the  Government 
with  the  consent  of  the  owner  or  under  circumstances  showing  that 
the  title  or  right  of  the  owner  was  recognized  or  admitted.  As,  in 
United  States  v.  Eussell,  13  Wall.  623,  which  was  an  action  to  recover 
for  the  use  of  certain  steamers  used  in  the  business  of  the  Government 
pursuant  to  an  understanding  with  the  owner  that  he  should  be  com- 
pensated; or,  in  United  States  v.  Great  Falls  Manufacturing  Com- 
pany, 112  U.  S.  645,  in  which  it  appeared  that  certain  private  prop- 
erty was  appropriated  by  officers  of  the  Government  for  public  use, 
pursuant  to  an  act  of  Congress,  the  title  of  the  owner  being  recog- 
nized or  not  disputed ;  or,  in  United  States  v.  Palmer,  128  U.  S.  262, 
269,  which  was  an  action  to  recover  for  the  use  of  a  patent  which  the 
Government  was  invited  by  the  patentee  to  use.  In  all  such  cases 
the  law  implies  a  meeting  of  the  minds  of  the  parties,  and  an  agree- 
ment to  pay  for  that  which  was  used  for  the  Government,  no  dis- 
pute existing  as  to  the  title  to  the  property  used.  The  important 
fact  in  each  of  those  cases  was  that  the  officers  who  appropriated  and 
used  the  property  of  others  were  authorized  to  do  so,  and  hence  the 
implied  contract  that  the  Government  would  pay  for  such  use. 

But,  as  we  have  seen,  the  plaintiff  contends  that  when  he  entered 
or  attempted  to  enter  the  elevator  the  Government  must  be  deemed 
to  have  contracted  that  its  employee  in  charge  of  it  would  use  due 
care  so  as  not  to  needlessly  injure  him.  In  other  words  —  for  it 
comes  to  that  —  by  the  mere  construction  and  maintenance  of  such 
elevator  the  Government,  contrary  to  its  established  policy,  impliedly 
agreed  to  be  responsible  for  the  torts  of  an  employee  having  charge 
of  the  elevator,  if,  by  his  negligence,  injury  came  to  one  using  it.  We 
find  no  authority  for  this  position  in  any  act  of  Congress,  and  noth- 
ing short  of  an  act  of  Congress  can  make  the  United  States  respon- 
sible for  a  personal  injury  done  to  the  citizen  by  one  of  its  em- 
ployees who,  while  discharging  his  duties,  fails  to  exercise  such  care 
and  diligence  as  a  proper  regard  to  the  rights  of  others  required. 
"  Causing  harm  by  negligence  is  a  tort."  One  of  the  definitions  of 
a  tort  is  "  an  act  or  omission  causing  harm  which  the  person  so  acting 


8  BIGBY  V.   UNITED  STATES. 

or  omitting  did  not  intend  to  cause,  but  might  and  should  with  due 
diligence  have  foreseen  and  prevented."  Pollock  on  Torts,  1,  19.^ 
The  elevator  in  question  was  erected  in  order  to  facilitate  the  transac- 
tion of  the  public  business,  and  also,  it  may  be  assumed,  for  the 
convenience  and  comfort  of  those  who  might  choose  to  use  it  when 
going  to  a  room  in  the  court-house  and  post-office  building  occupied 
by  public  officers,  and  not  pursuant  to  any  agreement,  express  or 
implied,  between  the  United  States  and  the  general  public,  or  under 
any  agreement  between  the  United  States  and  the  individual  person 
who  might  seek  to  use  it.  No  one  was  compelled  or  required  to  use 
it,  and  no  officer  in  charge  of  the  building  had  any  authority  to  say 
that  a  person  using  it  could  sue  the  Government  if  he  was  injured 
by  reason  of  the  want  of  due  care  on  the  part  of  the  employee  opera- 
ting it.  No  officer  had  authority  to  make  an  express  contract  to  that 
effect  and  no  contract  of  that  kind  could  be  implied  merely  from  the 
Government's  ownership  of  the  elevator  and  from  the  negligence  of 
its  employee.  The  facts  alleged  show  a  case  in  which  the  plaintiff 
was  injured  by  reason  of  the  negligence  of  the  manager  of  the  elevator. 
It  is  therefore  a  case  of  pure  tort  on  the  part  of  such  manager  for 
which  he  could  be  sued.  It  is  a  case  "  sounding  in  tort,"  because  it 
had  its  origin  in  and  is  founded  on  the  wrongful  and  negligent  act 
of  the  elevator  manager.  There  is  in  it  no  element  of  contract  as 
between  the  plaintiff  and  the  Government;  for,  as  we  have  said,  no 
one  was  authorized  to  put  upon  the  Government  a  liability  for  dam- 
ages arising  from  the  wrongful,  tortious  act  of  its  employee.  The 
plaintiff  therefore  cannot  by  the  device  of  waiving  the  tort  committed 
by  the  elevator  operator  make  a  case  against  the  Government  of  im- 
plied contract.  A  party  may  in  some  cases  waive  a  tort,  that  is,  he 
may  forbear  to  sue  in  tort,  and  sue  in  contract,  where  the  matter  out 
of  which  his  claim  arises  has  in  it  the  elements  both  of  contract  and 
tort.  But  it  has  been  well  said  that  "  a  right  of  action  in  contract 
cannot  be  created  by  waiving  a  tort,  and  the  duty  to  pay  damages 
for  a  tort  does  not  imply  a  promise  to  pay  them,  upon  which  assump- 
sit can  be  maintained."  Cooper  v.  Cooper,  147  Mass.  370,  373.  If 
the  plaintiff  could  sue  the  elevator  employee  upon  an  implied  con- 
tract that  due  care  should  be  observed  by  him  in  managing  the  ele- 
vator, it  does  not  follow  that  he  could  sue  the  Government  upon 
implied  contract.  For  under  existing  legislation  no  relation  of  con- 
tract could  rise  between  the  Government  and  those  who  chose  to  use 
its  elevator.  It  is  easy  to  perceive  how  disastrous  to  the  operations 
of  the  Government  would  be  a  rule  under  which  it  could  be  sued  for 
torts  committed  by  its  agents  and  employees  in  the  management  of 
its  property.  It  is  for  Congress  to  determine  in  all  such  cases  what 
justice  requires  upon  the  part  of  the  Government.  If  any  exceptions 
ought  to  be  made  to  the  general  rule  it  is  for  Congress  to  make  them. 

•  See  Bieelow  on  Torts,  8th  ed.,  p.  04. 


INTRODUCTION.  9 

We  have  not  overlooked  the  allegation  in  the  petition  that  the 
plaintiff  entered  the  elevator  "  at  the  request  of  the  United  States, 
and  of  its  officers,  employees  and  duly  authorized  agents,  each  acting 
within  the  scope  of  his  authority."  This,  we  assume,  means  at  most 
only  that  the  plaintiff  entered,  or  attempted  to  enter,  the  elevator  with 
the  assent  of  those  who  had  control  of  it  and  of  the  building  in  which 
it  was  erected.  But  if  more  than  this  was  meant  to  be  alleged;  if 
the  plaintiff  intended  to  allege  ^n  express  or  affirmative  request  by 
officers  or  agents  of  the  United  States,  the  case  would  not,  in  our 
view,  be  changed;  for  the  court  knows  that,  without  the  authority 
of  an  act  of  Congress,  no  officer  or  agent  of  the  United  States  could, 
in  writing  or  verbally,  make  the  Government  liable  to  suit  by  reason 
of  the  want  of  due  care  on  the  part  of  those  having  charge  of  an 
elevator  in  a  public  building. 

We  are  of  opinion  that  this  case  is  one  sounding  in  tort,  within  the 
meaning  of  the  act  of  1887,  and  therefore  not  maintainable  in  any 
court. 

The  judgment  of  the  Circuit  Court  dismissing  the  action  for  want 
of  Jurisdiction  is 

Affirmed. 


BOSTON"    &    WOECESTEE    EAILEOilD    COEPOEATION    v. 

DANA. 

Supreme  Court  of  Massachusetts,  March,  1854.     1  Gray,  83. 

Assumpsit  for  money  had  and  received. 

There  was  a  verdict  for  the  plaintiffs  and  the  defendant  moved  for 
a  new  trial  upon  the  ground,  among  others,  that  the  presiding  judge 
had  given  erroneous  instructions  to  the  jury. 

The  facts  are  stated  in  the  opinion. 

BiGELOw,  J.  The  main  objection,  raised  by  the  defendant  in  the 
present  case,  which,  if  well  maintained,  is  fatal  to  the  plaintiffs' 
action,  presents  an  interesting  and  important  question,  hitherto  un- 
determined by  any  authoritative  judgment  in  the  courts  of  this 
commonwealth. 

The  plaintiffs  seek  to  recover  in  an  action  of  assumpsit  a  large 
sum  of  money  alleged  by  them  to  have  been  fraudulently  abstracted 
from  their  ticket  office  by  the  defendant,  while  he  was  in  their  employ- 
ment as  depot-master,  having  charge  of  their  principal  railway  station 
in  Boston.  In  regard  to  this  item  of  the  plaintiffs'  claim,  the  defend- 
ant contended  at  the  trial,  and  requested  the  judge  who  presided  to 
instruct  the  jury,  that  the  plaintiffs  were  not  entitled  to  recover  in 
this  action  the  money  thus  taken  by  the  defendant,  because  their 
cause  of  action,  if  any  they  had,  was  suspended,  until  an  indictment 


10  BOSTON   &   WORCESTER  RAILROAD   CORPORATION   V.   DANA. 

had  been  found  or  complaint  made  against  the  defendant  for  larceny. 
This  request  was  refused,  and  the  jury  were  instructed,  that  if  the 
defendant  had  fraudulently  taken  and  appropriated  the  plaintiffs' 
money  in  the  manner  alleged,  and  was  thereby  guilty  of  larceny,  he 
would  be  liable  in  the  present  action,  although  no  criminal  prosecu- 
tion had  first  been  instituted  therefor.  It  is  upon  the  correctness  of 
this  instruction  that  the  first  and  main  question  in  the  case  arises. 

The  doctrine,  that  all  civil  remedies  in  favor  of  a  party  injured 
by  a  felony  are,  as  it  is  said  in  the  earlier  authorities,  merged  in 
the  higher  offence  against  society  and  public  justice,  or,  according  to 
more  recent  cases,  suspended  until  after  the  termination  of  a  criminal 
prosecution  against  the  offender,  is  the  well  settled  rule  of  law  in 
England  at  this  day,^  and  seems  to  have  had  its  origin  there  at  a 
period  long  anterior  to  the  settlement  of  this  country  by  our  English 
ancestors.  Markham  v.  Cob,  Latch,  144,  and  Noy,  83,  Dawkes  v. 
Coveneigh,  Style,  346.  Cooper  v.  Witham,  1  Sid.  375,  and  1  Lev. 
247.  Crosby  v.  Leng,  12  East,  413.  White  v.  Spettigue,  13  M.  & 
W.  603.    1  Chit.  Crim.  Law,  5. 

But  although  thus  recognized  and  established  as  a  rule  of  law  in 
the  parent  country,  it  does  not  appear  to  have  been,  in  the  language 
of  our  constitution,  "  adopted,  used  and  approved  in  the  province, 
colony  or  state  of  Massachusetts  Bay,  and  usually  practised  on  in  the 
courts  of  law."  The  only  recorded  trace  of  its  recognition  in  this 
commonwealth  is  found  in  a  note  to  the  case  of  Higgins  v.  Butcher, 
Yelv.  (Amer.  ed.),  90  a,  note  2,  by  which  it  appears  to  have  been 
adopted  in  a  case  at  nisi  prius  by  the  late  Chief  Justice  Sewall.  The 
opinion  of  that  learned  judge,  thus  expressed,  would  certainly  be 
entitled  to  very  great  weight,  if  it  were  not  for  the  opinion  of  this 
court  in  Boardman  v.  Gore,  15  Mass.  338,  in  which  it  is  strongly 
intimated,  though  not  distinctly  decided,  that  the  rule  had  never 
been  recognized  in  this  state,  and  had  no  solid  foundation,  under  our 
laws,  in  wisdom  or  sound  policy.  Under  these  circumstances,  we  feel 
at  liberty  to  regard  its  adoption  or  rejection  as  an  open  question, 
to  be  determined,  not  so  much  by  authority,  as  by  a  consideration 
of  the  origin  of  the  rule,  the  reasons  on  which  it  is  founded,  and  its 
adaptations  to  our  system  of  jurisprudence. 

Tlie  source,  whence  the  doctrine  took  its  rise  in  England,  is  well 
known.  By  the  ancient  common  law,  felony  was  punished  by  the 
death  of  the  criminal,  and  the  forfeiture  of  all  his  lands  and  goods 
to  the  crown.  Inasmuch  as  an  action  at  law  against  a  person,  whose 
body  could  not  be  taken  in  execution  and  whose  property  and  effects 
belonged  to  the  king,  would  be  a  useless  and  fruitless  remedy,  it 
was  lield  to  be  merged  in  the  public  offence.  Besides,  no  such  remedy 
in  favor  of  the  citizen  could  be  allowed  without  a  direct  interference 
with  the  royal  prerogative.     Therefore  a  party  injured  by  a  felony 

»Sff>  I'ollock  on  Torts,  7th  ed. ;  pp.  197-199. 


INTRODUCTION.  11 

could  originally  obtain  no  recompense  out  of  the  estate  of  a  felon, 
nor  even  the  restitution  of  his  own  property,  except  after  a  con- 
viction of  the  offender,  by  a  proceeding  called  an  appeal  of  felony, 
which  was  long  disused,  and  wholly  abolished  by  St.  59  Geo.  3,  c.  46; 
or  under  St.  31  H.  8,  c.  11,  by  which  the  judges  were  empowered 
to  grant  writs  of  restitution,  if  the  felon  was  convicted  on  the  evi- 
dence of  the  party  injured  or  of  others  by  his  procurement.  2  Car. 
&  P.  43,  note.  But  these  incidents  of  felony,  if  they  ever  existed 
in  this  state,  were  discontinued  at  a  very  early  period  in  our  colonial 
history.  Forfeiture  of  lands  or  goods,  on  conviction  of  crime,  was 
rarely,  if  ever,  exacted  here;  and  in  many  cases,  deemed  in  England 
to  be  felonies  and  punishable  with  death,  a  much  milder  penalty  was 
inflicted  by  our  laws.  Consequently  the  remedies,  to  which  a  party 
injured  was  entitled  in  case  of  felony,  were  never  introduced  into 
our  jurisprudence.  No  one  has  ever  heard  of  an  appeal  of  felony, 
or  a  writ  of  restitution  under  St.  21  H.  8,  c.  11,  in  our  courts.  So 
far  therefore  as  we  know  the  origin  of  the  rule  and  the  reasons  on 
w^hich  it  was  founded,  it  would  seem  very  clear  that  it  was  never 
adopted  here  as  part  of  our  common  law. 

Without  regard  however  to  the  causes  which  originated  the  doc- 
trine, it  has  been  urged  with  great  force  and  by  high  authority, 
that  the  rule  now  rests  on  public  policy;  12  East,  413,  414;  that 
the  interests  of  society  require,  in  order  to  secure  the  effectual  prose- 
cutions of  offenders  by  persons  injured,  that  they  should  not  be 
permitted  to  redress  their  private  wrongs,  until  public  justice  has 
been  first  satisfied  by  the  conviction  of  felons;  that  in  this  way  a 
strong  incentive  is  furnished  to  the  individual  to  discharge  a  public 
duty,  by  bringing  his  private  interest  in  aid  of  its  performance, 
which  would  be  wholly  lost,  if  he  were  allowed  to  pursue  his  remedy 
before  the  prosecution  and  termination  of  a  criminal  proceeding. 
This  argument  is  doubtless  entitled  to  great  weight  in  England, 
where  the  mode  of  prosecuting  criminal  offences  is  very  different 
from  that  adopted  with  us.  It  is  there  the  especial  duty  of  every 
one,  against  wdiose  person  or  property  a  crime  has  been  committed, 
to  trace  out  the  offender,  and  prosecute  him  to  conviction.  In  the 
discharge  of  this  duty,  he  is  often  compelled  to  employ  counsel;  pro- 
cure an  indictment  to  be  drawn  and  laid  before  the  grand  jury,  with 
the  evidence  in  its  support;  and  if  a  bill  is  found,  to  see  that  the 
case  on  the  part  of  the  prosecution  is  properly  conducted  before  the 
jury  of  trials.  All  this  is  to  be  done  by  the  prosecutor  at  his  own 
cost,  unless  the  court,  after  the  trial,  shall  deem  reimbursement 
reasonable.  1  Chit.  Crim.  Law,  9,  825.  The  whole  system  of  the 
administration  of  criminal  justice  in  England  is  thus  made  to  de- 
pend very  much  upon  the  vigilance  and  efforts  of  private  individuals. 
There  is  no  public  officer,  appointed  by  law  in  each  county,  as  in 
this  commonwealth,   to  act  in  behalf  of   the  government  in  such 


12  BOSTON    &   WORCESTER   RAILROAD   CORPORATION   V.   DANA. 

cases,  and  take  charge  of  the  prosecution,  trial  and  conviction  of 
offenders  against  the  laws.  It  is  quite  obvious  that,  to  render  such 
a  system  efficacious,  it  is  essential  to  use  means  to  secure  the  aid 
and  cooperation  of  those  injured  by  the  commission  of  crimes,  which 
are  not  requisite  with  us.  It  is  to  this  cause,  that  the  rule  in  ques- 
tion, as  well  as  many  other  legal  enactments,  designed  to  enforce 
upon  individuals  the  duty  of  prosecuting  offences,  owes  its  existence 
in  England.  But  it  is  hardly  possible,  under  our  laws,  that  any 
grave  offence  of  the  class  designated  as  felonies  can  escape  detection 
and  punishment.  The  officers  of  the  law,  whose  province  it  is  to 
prosecute  criminals,  require  no  assistance  from  persons  injured,  other 
than  that  which  a  sense  of  duty,  unaided  by  private  interest,  would 
naturally  prompt. 

On  the  other  hand,  in  the  absence  of  any  reasons,  founded  on 
public  policy,  requiring  the  recognition  of  the  rule,  the  expediency 
of  its  adoption  may  well  be  doubted.  If  a  party  is  compelled  to 
await  the  determination  of  a  criminal  prosecution  before  he  is  per- 
mitted to  seek  his  private  redress,  he  certainly  has  a  strong  motive 
to  stifle  the  prosecution  and  compound  with  the  felon.  Nor  can 
it  contribute  to  the  purity  of  the  administration  of  justice,  or  tend 
to  promote  private  morality,  to  suffer  a  party  to  set  up  and  maintain 
in  a  court  of  law  a  defence  founded  solely  upon  his  own  criminal 
act.  The  right  of  every  citizen,  under  our  constitution,  to  obtain 
justice  promptly  and  without  delay,  requires  that  no  one  should  be 
delayed  in  obtaining  a  remedy  for  a  private  injury,  except  in  a  case 
of  the  plainest  public  necessity.  There  being  no  such  necessity  call- 
ing for  the.  adoption  of  the  rule  under  consideration,  we  are  of 
opinion  that  it  ought  not  to  be  engrafted  into  our  jurisprudence. 

We  are  strengthened  in  this  conclusion  by  the  weight  of  American 
authority,  and  by  the  fact  that  in  some  of  the  states,  where  the  rule 
had  been  established  by  decisions  of  the  courts,  it  has  been  abrogated 
by  legislative  enactments.  Pettingill  v.  Eideout,  6  N.  H.  454.  Cross 
V.  Guthery,  2  Eoot,  90.  Piscataqua  Bank  v.  Turnley,  1  Miles,  313. 
Foster  v.  Commonwealth,  8  W.  &  S.  77.  Patton  v.  Freeman,  Coxe, 
113.  Hepburn's  case,  3  Bland,  114.  Allison  v.  Farmer's  Bank  of 
Virginia,  6  Rand.  223.  White  v.  Fort,  3  Hawks,  251.  Robinson  v. 
Gulp,  1  Const.  Rep.  231.  Story  v.  Hammond,  4  Ohio,  376.  Ballew  v. 
Alexander,  6  Hump.  433.  Blassingame  v.  Glaves,  6  B.  Monr.  38. 
Rev.  Sts.  of  N.  Y.  Part  3,  c.  4,  s.  2.     St.  of  Maine  of  1844,  c.  102. 

Judgment  on  the  verdict. 


INTEODUCTION.  13 


KIRBY  V.  BOYLSTON  MAEKET  ASSOCIATION. 

Supreme  Court  of  Massachusetts,  November,   1859.     14  Gray,  249. 

Action  of  Tort  for  personal  injuries  suffered  by  falling  upon  the 
sidewalk  on  the  north  side  of  the  defendant's  market  house  in 
Boston.  Trial  before  Bigelow,  J.,  who  reserved  the  following  case 
for  the  directions  of  the  full  court. 

The  plaintiff  introduced  evidence  tending  to  prove  the  injury  and 
that  it  occurred  on  the  sidewalk  forming  part  of  Boylston  Street, 
a  highway  in  the  city  of  Boston,  and  paved  by  order  of  the  city ;  that 
the  sidewalk  was  in  a  dangerous  condition  from  want  of  repair  and 
from  the  quantity  of  snow  and  ice  which  had  been  unlawfully  per- 
mitted to  accumulate  thereon,  consisting  of  snow  which  had  naturally 
fallen  there,  ice  formed  from  water  discharged  by  the  snow  and  rain, 
and  also  ice  formed  from  water  discharged  by  the  conductor  from 
the  roof  of  the  market  house,  which  discharged  upon  the  sidewalk, 
without  any  provision  to  carry  the  water  off,  and  from  water  which, 
for  want  of  sufficient  conductors,  overflowed  the  gutters  of  the  mar- 
ket house.  The  plaintiff  contended  that  the  sidewalk  was  in  a  bad 
condition  from  all  these  causes,  and  that  for  all  of  them  the  de- 
fendants were  liable,  and  that  his  injuries  were  occasioned  by  one 
or  more  of  them. 

The  defendants  contended  that  even  if  the  above  facts  were  true 
(which  they  denied),  they  were  not  answerable;  and  introduced  a 
witness,  the  superintendent  of  the  building,  who  testified  that  all  the 
stalls  and  cellars  forming  Boylston  Market  were  leased  to  various 
tenants,  and  that  all  the  rooms  in  the  upper  stories  were  also  let, 
some  of  them  to  tenants  at  will;  that  the  defendants  made  all  re- 
pairs outside  of  the  rooms  or  stalls,  and  took  care  of  the  roof,  gutters 
and  conductors  of  the  building;  that  the  outside  passage  ways  and 
doors  were  under  their  control,  so  far  as  was  necessary  in  order  to 
make  repairs;  that  they  employed  a  man  to  open  and  close  the 
doors  of  the  story  used  as  a  market,  at  hours  fixed  by  the  tenants; 
and  that  the  doors  of  the  upper  stories  were  opened  and  closed  by 
the  tenants  of  them,  who  kept  the  keys. 

Merrick,  J.  It  is  undoubtedly  a  well  settled  principle  of  the 
common  law  that  the  occupier,  and  not  the  landlord,  is  bound,  as 
between  himself  and  the  public,  so  far  to  keep  buildings  and  other 
structures  abutting  upon  common  highways  in  repair,  that  they  may 
be  safe  for  the  use  of  travellers  thereon ;  and  that  such  occupier  is 
prima  facie  liable  to  third  persons  for  damages  arising  from  any 
defect.  Lowell  v.  Spaulding,  4  Cush.  227.  Oakham  v.  Holbrook, 
11  Cush.  299.  Eegina  v.  Bucknall,  2  Ld.  Rajm.  804.  Rich  v.  Baster- 
field,  4  C.  B.  783. 


14  KIEBY    V.    BOYLSTON    MARKET    ASSOCIATION. 

But  the  defendants  are  not  in  a  situation  to  avail  themselves  of 
that  principle  in  defence  of  this  action.  Although  all  the  separate 
parts  of  their  building,  consisting  of  cellars,  stalls  and  disconnected 
chambers,  were  leased  either  at  will  or  for  a  term  of  years  to  many 
different  tenants,  yet  the  defendants  had  a  general  supervision  over 
the  whole,  and  had  the  entire  control  of  the  outside  doors  and  out- 
side passage  ways,  so  far  as  was  necessary  to  enable  them  to  make 
all  necessary  repairs;  the  obligation  to  do  which  rested  exclusively 
on  them.  They  also  kept  the  key  of  the  market  room,  and  opened 
and  closed  the  doors  of  it  at  certain  fixed  hours,  conforming  how- 
ever in  respect  to  the  time  of  doing  it  to  the  wishes  of  the  tenants. 
Under  these  circumstances  there  was  no  such  occupancy  by  the  tenants 
as  would  cast  upon  them  the  obligation  of  keeping  the  building  in 
repair,  or  make  them  responsible  to  third  persons  for  damages  re- 
sulting from  its  defects;  but  the  liability  in  that  particular  still  con- 
tinued to  rest  upon  the  owner. 

Individuals  who  sustain  injuries  or  suffer  loss  and  damage  peculiar 
and  special  to  themselves,  from  nuisance  created  or  obstructions  un- 
lawfully placed  by  another  person  in  a  public  highway,  may  maintain 
an  action  against  him  to  recover  compensation  therefor.  Stetson  v. 
Faxon,  19  Pick.  147.  Smith  v.  Smith,  2  Pick.  621.  Dobson  v.  Black- 
more,  9  Ad.  &  El.  jST.  E.  991.  The  defendants  therefore  are  plainly 
liable  to  the  plaintiff,  if  they  in  any  way  created  or  caused  a  public 
nuisance  in  the  highway  adjacent  to  their  estate,  by  means  of  which 
he,  while  using  due  care  for  his  own  protection  and  safety,  suffered 
the  injury  to  his  person  of  which  he  complains.  And  it  makes  no 
difference  how  or  in  what  manner  the  nuisance  was  created,  whether 
it  was  by  removing  the  snow  from  their  own  premises  and  piling  it 
up  in  the  public  street  in  such  an  accumulated  mass  as  essentially 
to  interfere  with  its  use  and  enjoyment,  and  to  impede  the  public 
travel,  or  in  any  other  way  or  by  any  other  means  whatever.  The 
same  consequences  would  follow  if  they  erected  their  building  upon 
the  highway,  or  constructed  it  so  that  it  would  necessarily  be  a  public 
nuisance  there;  or  if,  having  properly  and  lawfully  erected  and 
placed  it  upon  their  own  land,  they  suffer  and  allow  it  to  fall 
into  such  waste  and  decay  that  it  would  thereby  necessarily  become 
a  nuisance  and  thereby  cause  an  unlawful  obstruction  to  the  public 
travel.  In  either  and  all  of  these  cases,  they  would  be  liable  to 
prosecution  by  indictment,  and  also  be  responsible  to  individuals 
to  whom  special  damage  should  thereby  be  occasioned. 

But  the  defendants,  as  owners  and  occupants  of  the  land  and 
building  abutting  upon  Boylston  Street,  are  not  responsible  to  indi- 
viduals for  injuries  resulting  to  tliem  from  defects  and  want  of 
repair  in  the  sidewalk,  or  by  moans  of  snow  and  ice  accumulated 
by  natural  causes  thereon,  although,  by  ordinances  of  the  city,  it 
is  made  the  duty  of  abutters,  under  prescribed  penalties,  to  keep 


INTRODUCTION,  15 

the  sidewalks  adjoining  their  estates  in  good  repair,  and  seasonably 
to  remove  all  snow  and  ice  therefrom.  Such  ordinances  are  valid, 
and  the  work  which  is  enforced  under  them  relieves,  to  the  extent 
of  its  cost  or  value,  the  city  from  charges  which  otherwise  it  would 
be  necessarily,  in  discharge  of  its  municipal  duties,  subjected  to. 
Goddard,  petitioner,  16  Pick.  504.  For  the  city  is  required  to  keep 
all  duly  established  highways  within  its  limits  in  good  repair  and 
clear  of  snow  and  ice,  so  that  they  shall,  at  all  seasons  of  the  year, 
be  safe  and  convenient  for  persons  passing  and  travelling  thereon. 
Eev.  Sts.  c.  25,  ss.  1,  3,  24.  Loker  v.  Brookline,  13  Pick.  343.  And 
the  city  is  in  no  degree  exonerated  from  its  obligations  in  these  par- 
ticulars in  consequence  of  the  adoption  of  ordinances  designed  and 
intended  effectually  to  secure  the  proper  application  of  whatever  labor 
and  means  are  necessary  for  the  accomplishment  of  that  purpose. 
If  therefore  there  was,  at  the  time  when  the  plaintiff  complains  that 
he  sustained  an  injury  to  his  person,  any  defect  or  want  of  repair 
in  the  sidewalk,  or  if  it  was  so  incumbered,  by  operation  of  natural 
causes,  by  snow  and  ice  as  to  be  dangerous,  or  not  reasonably  safe 
and  convenient  for  travellers  passing  along  upon  it,  their  remedy 
for  all  damages  actually  sustained  in  consequence  thereof  is  ex- 
clusively against  the  inhabitants  of  the  city  in  their  corporate  ca- 
pacity.    St.  1850,  c.  5,  s.  1.1 

It  is  therefore  clear  that  upon  these  last  grounds  this  action  can- 
not be  maintained;  but  it  must  stand  continued  for  trial  upon  the 
questions  of  fact  whether  the  defendants  by  their  unlawful  acts  or 
their  negligence  in  constructing  or  maintaining  their  building,  caused 
or  created  a  public  nuisance  in  Boylston  Street,  by  means  of  which 
special  damage  was  done  to  the  plaintiff  in  the  manner  complained 
of  in  his  declaration.  Case  to  stand  for  trial. 


BOTT  V.   PEATT. 

Supreme  Court  of  Minnesota,  April,  1885.     33  Minn.  323. 

Appeal  by  defendants  from  an  order  of  the  district  court  for 
Eamsey  County,  Wilkin,  J.,  presiding,  refusing  a  new  trial,  after 
a  verdict  of  $950  for  plaintiff.     The  case  is  stated  in  the  opinion. 

Vanderburgh,  J.  The  charter  of  the  city  of  St.  Paul  empowers  the 
city  council,  by  ordinance,  to  compel  persons  to  fasten  their  horses 
or  other  animals  attached  to  vehicles,  while  standing  in  the  streets; 
such  ordinance  to  have  the  force  of  law  within  the  municipal  juris- 
diction, and  to  be  enforced  by  the  proper  penalties.  In  pursuance 
of  this  provision  the  following  ordinance  was  passed,  and  was  in 
force  when  the  accident  out  of  which  this  action  arose,  occurred: 
"  It  shall  not  hereafter  be   lawful  for  any   teamster  or  driver  or 

^  See  Rev.  Laws  of  Mass.,  c.  51,  §  19. 


16  BOTT    V.   PRATT. 

owner,  or  any  person  or  persons  having  in  charge  any  team  attached 
to  any  vehicle  within  the  city  of  St.  Paul,  to  leave  the  same  stand- 
ing in  or  along  any  public  street  in  said  city,  without  being  securely 
hitched  or  fastened,  or  without  being  held  by  some  one  securely/' 
The  defendants  left  a  team  of  horses,  attached  to  a  wagon  loaded 
with  wood,  in  a  public  street,  standing  unhitched,  and  for  the  time 
without  being  held  or  in  the  charge  of  any  one ;  the  driver,  defendants' 
servant,  having  temporarily  left  them,  to  make  inquiry  in  reference 
to  the  place  of  delivery  of  the  wood.  In  his  absence  the  team  started 
and  ran  down  Wabasha  Street,  one  of  the  most  public  thorough- 
fares in  the  city,  across  the  bridge  over  the  Mississippi  river,  and, 
colliding  with  the  plaintiff's  wagon,  caused  the  injury  complained  of. 
There  was  no  evidence  showing  the  particular  circumstances  which 
caused  the  horses  to  take  fright  and  run  away.  But  the  plaintiff's 
case  rests  upon  the  facts  above  stated,  which  are  undisputed. 

The  questions  of  fact  as  to  the  character  and  extent  of  plaintiff's 
injuries,  and  whether  he  was  guilty  of  contributory  negligence  in 
the  premises,  and  also  whether  the  fact  that  the  team  was  left  un- 
fastened and  unguarded  in  a  public  street  was  the  proximate  cause 
of  the  injury,  were  settled  by  the  verdict.  Milwaukee  &  St.  Paul 
Ey.  Co.  V.  Kellogg,  94  U.  S.  469. 

The  only  question,  then,  remaining  for  our  consideration,  is  the 
question  of  the  liability  of  the  defendants  in  a  civil  action  for  the 
natural  and  probable  consequences  of  the  unexcused  omission  of  their 
servant  to  fasten  the  team.  We  say  unexcused,  because,  in  view  of 
the  language  and  purpose  of  the  charter  and  ordinance,  it  is  mani- 
festly no  sufficient  excuse  that  the  horses  were  believed  to  be  gentle, 
and  not  vicious,  and  had  never  been  known  to  run  away.  If  the 
action  were  simply  an  ordinary  action  for  negligence,  in  the  absence 
of  any  statutory  duty,  these  circumstances,  with  others,  might  have 
been  considered  by  the  jury  in  determining  the  question  of  negli- 
gence, —  Griggs  V.  Fleckenstein,  14  Minn.  63,  —  though,  in  such  an 
action,  the  fact  that  the  horses  ran  away,  and  were  not  properly 
hitched,  would  be  evidence  of  negligence  in  not  fastening  them. 
Strup  V.  Edens,  23  Wis.  433;  Courternier  v.  Secombe,  8  Minn.  264. 
But  in  refusing  defendants'  instructions  to  the  jury,  the  court  rested 
the  action  upon  the  breach  of  the  ordinance,  and  in  substance  charged 
them  that  the  fact  of  so  leaving  the  horses  unattended,  and  of  the 
runaway  and  injury  to  plaintiff  in  consequence,  if  the  jury  should  so 
find,  established  a  case  against  the  defendants.  The  case  turns  upon 
the  correctness  of  those  instructions. 

Highways  are  dedicated  to  the  use  of  travellers,  and  hence  it  is 
held  to  be  the  law  that  where  horses  are  unlawfully  turned  loose  or 
permitted  to  be  at  large  in  a  public  street  by  the  owner,  he  is  liable 
for  any  resulting  injury  or  trespass,  without  reference  to  the  ques- 
tion of  previous  knowledge  of  their  vicious  disposition  or  character. 


INTRODUCTION.  17 

Barnes  v.  Chapin,  4  Allen,  444;  Goodman  v.  Gay,  15  Pa.  St.  188, 
193.  In  Barnes  v.  Chapin,  the  court  say,  (p.  44G)  :  "It  has  long 
been  regarded  as  inconsistent  with  the  safety  and  convenience  of 
travellers  to  permit  horses  to  go  at  large  on  the  highway,  and  such 
an  act  is  an  offence  against  our  statutes."  The  difference  between 
that  case  and  this  is  that  while  the  defendants'  horses  were  right- 
fully on  the  public  street,  they  were  unlawfully  left  unguarded. 
The  breach  of  duty  arising  from  the  violation  of  the  statute  in  one 
case,  and  the  ordinance  in  the  other,  is  of  the  same  nature,  and  the 
consequences  the  same,  as  relating  to  the  safety  of  persons  using 
the  streets.  Travellers  on  a  highway  would  have  a  riglit  to  assume 
that  the  statutes  referred  to  were  made  for  their  protection,  and 
that  they  were  therefore  entitled  to  the  benefit  thereof  in  enforcing 
a  claim  for  damages  against  persons  through  whose  neglect  to  ob- 
serve the  requirements  of  such  statutes  they  have  suffered  injury. 
And  so  it  is  insisted  by  the  plaintiff  in  this  action  that  this  ordi- 
nance is  binding  as  law  upon  the  inhabitants  of  the  city;  that  it 
was  lawfully  made  for  a  similar  purpose,  and  involves  like  duties 
and  responsibilities,  as  respects  persons  within  the  municipal  juris- 
diction. This  point  will  be  further  considered  in  the  course  of  the 
opinion. 

Wherever  a  statute  creates  a  duty  or  an  obligation,  then,  though 
it  has  not  in  express  terms  given  a  remedy,  the  remedy  which  is  by 
law  properly  applicable  to  that  obligation  follows  as  an  incident. 
Addison  on  Torts,  s.  58;  Parker  v.  Barnard,  135  Mass.  116;  Patter- 
son V.  Detroit,  etc.,  E.  Co.,  22  N.  W.  Eep.  260.  But  whether  a  lia- 
bility arising  from  the  breach  of  a  statutory  duty  accrues  for  the 
benefit  of  an  individual  specially  injured  thereby,  or  whether  such 
liability  is  exclusively  of  a  public  character,  must  depend  upon  the 
nature  of  the  duty  enjoined,  and  the  benefits  to  be  derived  from  its 
performance.  Taylor  v.  Lake  Shore  &  M.  S.  R.  Co.,  45  Mich.  74; 
Hayes  v.  Mich.  Central  E.  Co.,  Ill  U.  S.  228,  240;  Cooley  on  Torts, 
658. 

To  illustrate:  Patterson  v.  Detroit,  etc.,  E.  Co.,  supra,  was  an 
action  for  damages  by  a  traveller,  against  defendants,  for  obstruct- 
ing a  highway  in  violation  of  the  provisions  of  a  statute  prohibiting 
railway  companies  from  obstructing  a  street-crossing  longer  than 
five  minutes.  Parker  v.  Barnard  was  an  action  for  damages  by  a 
person  injured  through  defendant's  omission,  in  disregard  of  a 
statute,  to  protect  a  hatchway  by  a  railing.  Hayes  v.  Mich.  Central 
E.  Co.  is  a  case  where,  as  in  this  case,  an  action  for  damages  Avas 
predicated  upon  the  negligent  omission  to  comply  with  an  ordinance 
which  a  city  had  passed  under  legislative  authority,  and  which  was 
intended  as  a  protection  to  persons  from  injuries.  In  Salisbury  v. 
Herchenroder,  106  Mass.  458,  plaintiff  recovered  damages  occasioned 
by  the  falling  of  a  sign  (in  an  extraordinary  gale)  which  had  been 


18  BOTT    V.   PRATT. 

suspended  by  defendant  over  a  street,  contrary  to  a  city  ordi- 
nance, and  defendant  was  not  otherwise  negligent.  In  Owings  v. 
Jones,  9  Md.  108,  117,  the  defendant  was  held  liable  for  consequent 
damages  to  a  party  injured  through  a  negligent  omission  to  com- 
ply with  the  provisions  of  a  city  ordinance  which  provided  the  mode 
in  which  vaults  in  public  streets  should  be  protected.  In  Devlin  v. 
Gallagher,  6  Daly,  (N.  Y.),  494,  a  failure  to  comply  with  the  pro- 
visions of  an  ordinance  requiring  certain  precautions  in  blasting, 
was  held  prima  facie  evidence  of  negligence,  sufficient  to  support 
an  action  by  one  injured  through  such  default.  In  Baltimore  City 
Ey.  Co.  V.  McDonnell,  43  Md.  534,  under  a  city  ordinance  limiting 
the  speed  of  cars  to  six  miles  an  hour,  the  defendant  was  held  liable 
if  the  jury  believed  from  the  evidence  that  the  accident  would  have 
been  avoided  if  the  cars  had  not  been  moving  at  a  greater  speed. 
Johnson  v.  St.  Paul  &  Duluth  E.  Co.,  31  Minn.  283 ;  Correll  v.  B.  C. 
E.  &  M.  E.  E.  Co.,  38  Iowa,  120 ;  Siemers  v.  Eisen,  54  Cal.  418. 

The  city  ordinance  under  consideration  was  undoubtedly  intended 
for  the  benefit  of  persons  travelling  on  the  streets,  and  all  such 
persons  while  so  travelling  would  have  the  right  to  expect  the  ordi- 
nance to  be  observed  and  to  govern  themselves  accordingly.  Wright 
V.  Maiden  &  M.  E.  Co.,  4  Allen,  283;  Lane  v.  Atlantic  Works,  111 
Mass.  136. 

On  the  other  hand,  where  the  duties  enjoined  are  due  to  the 
municipality  or  to  the  public  at  large,  and  not  as  composed  of 
individuals,  a  different  rule  is  intended  to  apply.  This  is  well 
illustrated  by  the  cases  of  Kirby  v.  Boylston  Market  Assn.,^  14  Gray, 
249,  and  Flynn  v.  Canton  Co.,  40  Md.  312,  323,  in  which  it  was 
held  that  the  owners  of  land  abutting  on  streets  were  liable  to  the 
city  alone  for  the  breach  of  ordinances  requiring  such  owners  to 
keep  sidewalks  clear  of  snow  and  ice,  and  in  good  repair,  and  that 
they  were  not  liable  in  damages  to  persons  injured  by  their  neglect 
to  perform  the  duties  enjoined  by  such  ordinances.  This  proceeds 
upon  the  ground  that  it  is  the  sole  duty  of  the  city  to  keep  the 
streets  in  good  repair,  and  clear  of  snow  and  ice.  The  work  done, 
and  fines  or  taxes  collected,  in  such  cases,  to  the  extent  thereof,  are 
to  be  considered  as  so  far  in  aid  of  the  city  in  the  discharge  of  its 
duty.  See,  also,  Taylor  v.  Lake  Shore  &  M.  S.  E.  Co.,  supra ;  Heeney 
V.  Sprague,  11  E.  I.  456.  And  so,  also,  generally  of  ordinances  or 
statutes  relating  specially  to  duties  due  strictly  to  the  corporation 
or  state. 

The  analogy  between  statutes  and  the  ordinances  of  cities  is,  of 
course,  not  to  be  extended  beyond  the  proper  limits  of  municipal 
jurisdiction.  But  in  matters  properly  of  local  cognizance  it  is 
necessary  and  eminently  proper  that  such  powers  should  be  com- 
mitted to  the  municipality,  to  be  exercised  through  ordinances  which 

»Ante.  p.  1.1. 


INTRODUCTION.  19 

shall  be  subordinate  to  and  consistent  with  the  general  laws,  or  in 
proper  cases  be  authorized  to  take  their  place.  Cooley,  Const.  Lim. 
*199.  An  ordinance  which  a  municipal  corporation  is  authorized  to 
make,  is  as  binding  on  all  persons  within  the  corporate  limits  as 
any  statute  or  other  laws  of  the  commonwealth,  and  all  persons 
interested  are  bound  to  take  notice  of  their  existence.  Heland  v. 
City  of  Lowell,  3  Allen,  407;  Vandine's  Case,  6  Pick.  187;  Gilmore 
V.  Holt,  4  Pick.  257;  Johnson  v.  Simonton,  43  Cal.  242,  249. 

As  respects  the  ordinance  in  question,  it  was,  as  we  have  seen, 
authorized  by  the  charter,  was  within  the  proper  sphere  of  municipal 
legislation,  and  not  inconsistent  with  or  in  contravention  of  general 
laws,  and,  though  local  in  its  application,  it  was  obligatory  upon 
persons  within  the  limits  of  the  city;  and  there  is  no  reason  why 
it  should  not  be  held  to  impose  a  legal  duty,  such  that  a  civil  action 
for  damages  might  be  maintained  for  a  breach  thereof,  as  in  the 
case  of  like  statutory  duties.  Hayes  v.  Mich.  Central  E.  Co.  supra; 
Mason  v.  City  of  Shawneetown,  77  111.  533;  Flynn  v.  Canton  Co., 
40  Md.  312 ;  Jackson  v.  Shawl,  29  Cal.  267.  Some  courts,  however, 
deny  the  application  of  the  rule  in  case  of  city  ordinances,  and  in- 
sist that  it  is  applicable  solely  to  laws  enacted  by  the  legislature. 
Heeney  v.  Sprague,  11  E.  I.  456 ;  Vandyke  v.  City  of  Cincinnati,  1 
Disney  (Ohio),  532;  Philadelphia  &  E.  E.  Co.  v.  Ervin,  89  Pa.  St. 
71.  These  were  cases  arising  out  of  a  failure  to  comply  with  ordi- 
nances similar  in  character  to  the  one  considered  in  Flynn  v.  Canton 
Co.,  and  might  have  been  disposed  of  on  the  same  ground,  and  were 
rightly  determined  without  necessarily  involving  the  question  we 
are  considering. 

A  different  view  is  also  suggested  in  Chambers  v.  Ohio  Trust  Co., 
1  Disney  (Ohio),  327,  336;  and  in  Knupfle  v.  Knickerbocker  Ice  Co., 
84  N.  Y.  488,  it  was  held  by  a  divided  court  that  the  result  of  the 
decisions  in  New  York  is  that  a  breach  of  a  municipal  ordinance  is 
evidence  of  negligence  merely,  to  be  considered  with  other  facts  in 
the  case.  But  we  do  not  regard  the  case  of  much  value  as  an  au- 
thority. The  rule  is  to  be  regarded  as  a  common-law  rule,  and  it 
would  hardly  be  consistent  or  reasonable  to  hold  that  it  might  be 
applicable  to  an  act  of  the  legislature,  and  inapplicable  where  the 
legislature,  instead  of  itself  enacting  a  law,  should,  in  a  proper  case, 
expressly  authorize  a  municipal  corporation  to  make  the  same  law 
for  the  local  jurisdiction.  Suppose,  for  instance,  that  the  legislature 
had  itself  expressly  enacted  the  substance  of  the  ordinance  in  question 
in  the  charter,  instead  of  authorizing  the  city  council  to  enact  it: 
could  it  be  said  that  in  the  former  case  an  injured  party  would  be 
entitled  to  indemnity,  and  in  the  latter  not?  In  this  class  of  cases, 
therefore,  proof  of  a  breach  of  the  ordinance  will  make  a  case  of 
negligence;  but,  of  course,  the  plaintiff  must  make  it  appear,  as  the 
court  properly  charged  the  jury  in  this  case,  that  the  injury  com- 


20  LAMB    V.   STONE. 

plained  of  resulted  from  the  alleged  neglect  of  the  duty  thereby  im- 
posed; and  so  defendant  may  show,  as  matter  of  defence,  that  the 
accident  occurred  without  his  fault,  or  that  the  observance  of  the 
ordinance  was  immaterial  as  respects  the  plaintiff;  as,  for  instance, 
in  the  case  of  the  omission  to  ring  the  boll  of  an  engine,  of  the 
approach  of  which  the  plaintiff  otherwise  had  notice. 

Order  affirmed. 


LAMB  V.  STONE. 

Supreme  Court  of  Massachusetts,  October,  1831.     11  Pick.  526. 

Action  on  the  Case. 

The  declaration  contained  five  counts.  The  fifth  count  alleged, 
that  whereas  Thompson,  at  Oxford,  on  December  7,  1826,  was  in- 
debted to  the  plaintiff  in  the  sum  of  $56,  and  was  fraudulently  and 
wrongfully  contriving  and  intending  to  prevent  the  plaintiff  from 
recovering  the  same  of  Thompson  by  putting  out  of  his  possession 
the  property  and  estate  of  which  he  was  possessed,  so  that  the  same 
could  not  be  come  at  to  be  attached  by  due  process  of  law,  and  avoid- 
ing the  process  of  law  provided  for  the  collection  of  debts,  by  going 
out  of  the  commonwealth  and  the  reach  of  said  process  —  of  all  which 
the  defendant  was  then  and  there  well  knowing  —  he,  the  defendant, 
did,  in  order  to  aid  and  abet  Thompson  in  his  wrongful  and  fraudu- 
lent intent,  and  with  the  intent  to  injure  and  defraud  the  plaintiff 
of  his  demand  against  Thompson,  take  into  his  possession,  purchase 
and  receive  the  property  and  estate  of  Thompson,  then  and  there  be- 
ing found,  of  great  value,  to  wit,  $250,  and  did  fraudulently  and 
with  the  intent  to  deprive  the  plaintiff  of  the  means  of  recovering 
his  debt  of  Thompson,  aid,  abet  and  assist  Thompson  to  avoid  the 
process  of  law  provided  for  the  collection  of  debts,  by  departing 
out  of  the  commonwealth,  which  Thompson  did,  and  has  ever  since 
remained  without  the  reach  and  effect  of  the  legal  process  of  the  com- 
monwealth, in  foreign  parts,  to  wit,  in  the  State  of  Vermont;  whereby 
the  plaintiff  was  deprived  of  the  means  of  collecting  his  debt,  as  he 
might  and  would  otherwise  have  done,  and  was  about  to  do,  by  at- 
taching the  property  or  arresting  the  body  of  Thompson  by  due 
process  of  law,  and  has  ever  since  been  deprived  of  his  debt  and  all 
means  of  collecting  the  same  or  enforcing  payment  thereof,  and  has 
wholly  lost  the  same,  and  has  been  otherwise  greatly  injured  by  the 
frauflulent  doings  of  the  defendant  as  aforesaid. 

The  general  issue  was  pleaded,  and  upon  the  trial  a  general  ver- 
dict was  returned  for  the  plaintiff. 

The  defendant  moved  in  arrest  of  judgment,  upon  the  ground  that 
no  sufficient  cause  of  action  was  set  forth  in  the  declaration. 


INTRODUCTION".  21 

Morton,  J,  This  case  comes  before  us  on  a  motion  in  arrest  of 
judgment.  The  verdict  of  the  jury  establishes  every  material  allega- 
tion in  the  plaintiff's  declaration.  And  every  fact  substantially  set 
forth  is  to  be  taken  to  be  true.  The  question  for  our  decision  is, 
whether  these  facts  are  sufficient  to  entitle  the  plaintiff  to  judgment. 
Although  the  verdict  is  general,  yet  in  this  case,  if  either  count  is 
good,  the  verdict  may  be  applied  to  that  count  and  judgment  be  ren- 
dered upon  it. 

The  following  are  all  the  material  allegations  contained  in  either 
of  the  counts  —  That  the  plaintiff  had  a  just  debt  due  him  from  one 
Thompson  —  that  the  latter  had  property  liable  to  attachment  suffi- 
cient to  pay  this  debt  —  that  the  defendant  took  a  fraudulent  con- 
veyance of  this  property  —  that  Thompson  has  absconded  from  the 
State  —  that  the  plaintiff  has  not  been  able  to  arrest  him,  to  attach 
his  property,  or  otherwise  to  obtain  satisfaction  of  his  debt  —  and 
that  the  acts  done  by  the  defendant  were  done  with  intent  to 
defraud  the  plaintiff,  by  preventing  him  from  securing  or  getting 
satisfaction  of  his  debt.  Some  of  these  are  omitted  in  several  of  the 
counts;  but  no  one  contains  any  other  material  allegation. 

Will  these  facts  support  an  action? 

Before  proceeding  to  the  investigation  of  the  main  question  it 
may  be  proper  to  remark,  that  the  declaration  contains  no  averment 
that  Thompson  is  insolvent,  or  that  he  has  not,  where  he  now  resides, 
property  liable  to  be  taken,  sufficient  to  satisfy  the  debt,  or  that  any 
suit  has  ever  been  commenced  against  him,  or  any  attempt  made  to 
arrest  his  body  or  attach  his  property;  nor  is  it  alleged,  except  by 
implication,  that  he  has  not  in  this  State  real  estate  or  personal 
property  other  than  that  transferred  to  the  defendant,  liable  to  at- 
tachment. 

It  ought  also  to  be  further  remarked,  that  this  is  not  an  action 
of  conspiracy  or  of  case  in  the  nature  of  conspiracy.  It  is  not 
founded  upon  any  illegal  combination  or  confederacy.  The  declara- 
tion does  not  set  forth  any  conspiracy  to  defraud  the  plaintiff  or  to 
evade  or  defeat  any  legal  process.  No  such  fact  can  be  presumed  to 
exist;  and  therefore  we  have  no  occasion  to  determine  what  effect 
such  an  averment  would  have.  It  will  however  be  perceived,  that 
some  of  our  reasoning  would  apply  to  such  an  action,  as  well  as  the 
one  before  us. 

This  is  a  special  action  of  the  case,  depending  upon  the  precise 
facts  set  forth  in  the  declaration.  It  is  an  action  of  new  impression. 
It  is  admitted  that  no  precedent  can  be  found  for  it.  This  circum- 
stance of  itself  forms  a  pretty  strong  objection.  It  ought  however 
to  have  less  weight  in  this  than  any  other  form  of  action.  In  the 
diversified  transactions  of  civilized  life  new  combinations  of  circum- 
stances will  sometimes  arise,  which  will  require,  in  the  application 
of  well  settled  principles  of  law,  new  forms  of  declarations. 


22  LAMB   V.   STONE. 

Among  the  old  and  wise  axioms  of  the  law  none  are  more  sound 
than  those  upon  which  the  plaintiff  attempts  to  found  this  action. 
In  law,  for  every  wrong  there  is  a  remedy.  3  Bl.  Com.  123 ;  Ashby  v. 
White,  1  Salk.  21.  Whenever  the  law  creates  or  recognizes  a  private 
right,  it  also  gives  a  remedy  for  a  violation  of  it.  1  Chit.  PI.  83; 
11  Johns.  E.  l-iO.  The  general  principle,  that  whenever  there  is 
fraud  or  deceit  by  the  one  party  and  injury  to  the  other,  or  damnum 
cum  injuria,  there  an  action  will  lie,  is  very  often  referred  to  with 
approbation,  and  always  recognized  as  good  law.  Upton  v.  Vail,  6 
Johns.  E.  182;  Pasley  v.  Freeman,  3  T.  E.  51;  Eyre  v.  Dunsford, 
1  East.  329. 

But  these  principles,  however  sound,  must  be  understood  with  such 
qualifications  and  limitations  as  other  principles  of  law  equally  sound 
necessarily  impose  upon  them.  It  is  very  clear  that  there  may  be 
many  moral  wrongs  for  which  there  can  be  no  legal  remedy.  And 
there  may  be  legal  torts  in  which  the  damage  to  individuals  may  be 
very  great,  and  yet  so  remote,  contingent  or  indefinite,  as  to  furnish 
no  good  ground  of  action.     3  T.  E.  63. 

Without  entering  further  into  the  explanation  of  these  principles, 
their  extent,  qualifications  or  limitations,  we  will  proceed  to  inquire 
how  far  they  may  be  relied  upon  in  support  of  this  action.  To  render 
them  applicable  the  plaintiff  must  show  that  he  has  sustained  dam- 
age from  the  tortious  act  of  the  defendant,  for  which  the  established 
forms  of  law  furnish  him  no  remedy.  If  he  may  have  redress  by  any 
of  the  forms  of  actions  now  known  and  practised,  it  would  be  unwise 
and  unsafe  to  sanction  an  untried  one,  the  practical  operation  of 
which  cannot  be  fully  foreseen.  The  Court  will  adopt  a  new  remedy 
to  prevent  the  failure  of  justice,  or  to  enforce  the  settled  principles 
of  law;  but  never  when  justice  can  be  obtained  by  any  of  the  reme- 
dies already  known  to  the  law.     Com.  Dig.  Action  on  the  case,  B.  8. 

The  gist  of  the  injury  complained  of  is  the  fraudulent  purchase  by 
the  defendant,  of  the  property  of  the  plaintiff's  debtor.  If  the  sale 
was  fraudulent,  it  might  be  avoided  by  the  creditors,  and  the  prop- 
erty was  liable  to  attachment  after  as  well  as  before  the  conveyance. 
The  fraud  could  be  established  quite  as  easily  in  a  suit  for  the  chat- 
tels themselves,  as  in  the  present  case.  There  is  no  averment  that  the 
defendant  had  concealed  the  property,  removed  it  out  of  the  com- 
monwealth, or  in  any  other  way  so  disposed  of  it  that  it  could  not 
be  attached.  But  oven  if  it  were  so,  and  the  property  could  not  be 
come  at  to  be  attached  specifically,  yet  it  might  be  attached  in  the 
defendant's  hands  by  the  trustee  process.  In  this  event  the  defendant 
would  be  compellable  to  disclose  all  the  circumstances  attending  the 
transaction,  on  oath;  and  if  he  did  not  answer  truly,  would  be  liable 
to  a  special  action  on  the  case,  by  St.  1704,  c.  fi5,  s.  9.  It  would  be 
difficult  to  show  any  good  reason  why  the  plaintiff  might  not  obtain 
legal  justice  in  the  one  or  the  other  of  these  modes,  as  easily  and 


INTRODUCTION.  23 

surely  as  by  the  present  action.  Burlingame  v.  Bell,  16  Mass.  E.  320 ; 
Devoll  V.  Brownell,  5  Pick.  448. 

It  was  said  in  argument  by  the  plaintiff's  counsel,  that  if  he  re- 
sorted to  the  trustee  process,  the  defendant  would  be  entitled  to  any 
equitable  set-off  which  he  might  have  against  his  principal;  that  if 
he  had  made  advances  or  paid  debts  in  good  faith,  he  would  be  allowed 
to  apply  them  towards  satisfaction  for  the  property  conveyed  to  him, 
and  so  the  plaintiff  could  not  avail  himself  of  the  full  value  of  the 
property.     5  Pick.  32;  6  Pick.  474;  7  Pick.  166. 

And  why  should  it  not  be  so?  If  the  defendant  paid  bona  fide  the 
value  of  the  property,  the  plaintiff  is  not  injured.  The  owner  had 
good  right  to  sell  to  whom  he  pleased,  and  to  prefer  any  other  of  his 
creditors  to  the  plaintiff.  If  the  fraudulent  conduct  of  the  defendant 
has  done  no  injury  to  the  plaintiff,  he  cannot  complain.  He  cannot 
have  the  aid  of  the  law  to  speculate  upon  the  defendant's  fraud.  The 
law  will  protect  him  from  damage,  but  will  not  enable  him  to  derive 
advantage,  from  the  fraudulent  conduct  of  the  defendant. 

This  action,  if  sustained,  would  establish  a  precedent  which  would 
produce  in  practice  great  inconvenience  and  oftentimes  do  manifest 
injustice.  If  the  plaintiff  may  maintain  this  action  against  the  de- 
fendant, so  may  every  creditor  of  Thompson.  The  plaintiff  had  done 
nothing  to  give  him  priority.  Shall  the  fraudulent  purchaser  be 
holden  to  pay  all  the  debts  of  the  fraudulent  vendor?  Justice  does 
not  require  this.  The  conveyance  might  be  fraudulent  in  law,  and  yet 
there  might  be  no  moral  turpitude  in  the  transaction.  The  property 
conveyed  might  be  very  small  and  the  debts  very  large.  Shall  the 
value  of  the  property  transferred  be  apportioned  among  all  the  cred- 
itors? By  what  rules  shall  the  apportionment  be  made?  Shall  the 
creditor  who  first  sues  be  entitled  to  the  whole,  if  his  debt  be  large 
enough  to  require  the  whole  for  its  satisfaction?  If  one  creditor 
should  attach  the  property  specifically,  another  should  summon  the 
fraudulent  vendee  as  trustee  of  the  vendor,  and  a  third  should  com- 
mence an  action  like  this,  which  would  have  the  preference  ?  Can  the 
same  party  resort  to  more  than  one  of  these  remedies  at  the  same 
time  ?  And  would  the  judgment  in  the  one  be  a  bar  to  the  other  ? 
Many  cases  might  occur,  in  which  it  would  be  extremely  difficult  to 
adopt  any  rule  of  damages  which  would  do  justice  to  all  the  parties 
interested. 

But  besides  these  practical  inconveniences,  which  are  of  them- 
selves insurmountable,  there  is  another  objection  fatal  to  the  present 
action.  The  injury  complained  of,  is  too  remote,  indefinite  and  con- 
tingent. To  maintain  an  action  for  the  deceit  or  fraud  of  another, 
it  is  indispensable  that  the  plaintiff  should  show  not  only  that  he  has 
sustained  damage  and  that  the  defendant  has  committed  a  tort,  but 
that  the  damage  is  the  clear  and  necessary  consequence  of  the  tort, 
and  that  it  can  be  clearly  defined  and  ascertained.     Wliat  damage 


24  LAMB   V.   STONE. 

has  the  plaintiff  sustained  by  the  transfer  of  his  debtor's  property? 
He  has  lost  no  lien,  for  he  had  none.  No  attachment  has  been  de- 
feated, for  none  had  been  made.  He  has  not  lost  the  custody  of  his 
debtor's  body,  for  he  had  not  arrested  him.  He  has  not  been  pre- 
vented from  attaching  the  property  or  arresting  the  body  of  his 
debtor,  for  he  never  had  procured  any  writ  of  attachment  against 
him.  He  has  lost  no  claim  upon  or  interest  in  the  property,  for  he 
never  had  acquired  either.  The  most  that  can  be  said  is,  that  he 
intended  to  attach  the  property  and  the  wrongful  act  of  the  defendant 
has  prevented  him  from  executing  this  intention.  Is  this  an  injury 
for  which  an  action  will  lie?  How  can  the  secret  intentions  of  the 
party  be  proved?  It  may  be  he  would  have  changed  this  intention. 
It  may  be  the  debtor  would  have  made  a  bona  fide  sale  of  the  prop- 
erty to  some  other  person,  or  that  another  creditor  would  have  at- 
tached it,  or  that  the  debtor  would  have  died  insolvent,  before  the 
plaintiff  would  have  executed  his  intention.  It  is  therefore  entirely 
uncertain  whether  the  plaintiff  would  have  secured  or  obtained  pay- 
ment of  his  debt,  if  the  defendant  never  had  interfered  with  the 
debtor  or  his  property.  Besides,  his  debt  remains  as  valid  as  it  ever 
was.  He  may  yet  obtain  satisfaction  from  property  of  his  debtor, 
or  his  debtor  may  return  and  pay  him.  On  the  whole  it  does  not 
appear  that  the  tort  of  the  defendant  caused  any  damage  to  the  plain- 
tiff. But  even  if  so,  yet  it  is  too  remote,  indefinite  and  contingent, 
to  be  the  ground  of  an  action. 

Among  the  many  cases  cited  by  the  plaintiff's  counsel,  those  of 
Adams  et  al.  v.  Paige  et  al.,  7  Pick.  542,  Yates  v.  Joyce,  11  Johns. 
E.  136,  and  Smith  v.  Tonstall,  Carthew,  3,  bear  the  greatest  resem- 
blance to  the  case  at  bar.  But  an  examination  of  these  cases  will 
not  only  show  that  there  is  an  obvious  and  broad  distinction  between 
them  and  the  one  under  consideration,  but  that  the  principles  adopted 
in  all  of  them  support  the  ground  now  taken  by  the  Court. 

In  Adams  et  al.  v.  Paige  et  al.,  the  plaintiffs  had  made  an  attach- 
ment of  the  property  of  their  debtor;  the  two  defendants,  one  of 
whom  was  the  debtor,  had  caused  a  previous  attachment  to  be  made 
of  the  same  property  on  a  fictitious  debt  which  they  had  created  for 
the  purpose  of  preventing  attachments  on  bona  fide  debts.  The  suit 
upon  which  the  fraudulent  attachment  was  made  was  pursued  to 
judgment,  the  property  attached  was  sold  on  execution  and  the  pro- 
ceeds of  the  sale  remained  in  the  hands  of  the  fraudulent  judgment 
debtor.  Now  by  these  collusive  acts  the  plaintiffs'  attachment  was 
defeated  and  the  price  of  the  property,  which  but  for  the  fraudulent 
acts  of  the  defendants  would  have  been  applied  to  the  satisfaction  of 
the  plaintiffs'  execution,  was  holden  by  one  of  the  defendants.  Here 
the  loss  of  the  debt  was  the  consequence  of  the  loss  of  the  lien,  and 
the  loss  of  the  lien  was  the  clear  and  certain  consequence  of  the 
fraudulent  conduct  of  the  defendants.     The  injury  was  direct  and 


INTRODUCTION.  25 

certain,  and  the  damages  easily  sliown  and  defined.  The  justice  of 
the  plaintiffs'  claim  was  very  obvious,  and  their  recovery  founded  on 
the  soundest  principles  of  law. 

Besides,  if  we  were  looking  for  distinctions  between  Adams  ct  al. 
V.  Paige  et  al.  and  the  case  at  bar,  it  would  be  sufficient  to  state 
that  the  former  was  an  action  for  a  conspiracy  between  two,  to  de- 
fraud the  plaintiffs  by  means  of  a  fictitious  debt  and  a  collusive 
judgment,  in  which  the  unlawful  confederacy  was  the  gist  of  the 
action. 

In  Yates  v.  Joyce,  the  plaintiff,  by  means  of  a  judgment  against 
his  debtor,  had,  according  to  the  laws  of  New  York,  acquired  a  lien 
on  certain  property,  which  was  injured  and  reduced  in  value  by  the 
tortious  acts  of  the  defendant,  so  as  to  be  insufficient  to  satisfy  the 
plaintiff's  judgment.  The  plaintiff  suffered  an  injury  for  which  he 
had  no  other  remedy.  The  damage  was  definite  and  certain,  and  was 
the  direct  and  necessary  consequence  of  the  defendant's  tort.  His 
right  to  recover  was  unquestionable. 

The  old  case  of  Smith  v.  Tonstall,  Carth.  3,  is  very  similar  and 
rests  upon  the  same  principle.  The  plaintiff  having  obtained  a  judg- 
ment against  one  S.,  the  defendant  procured  S.  to  confess  a  judg- 
ment to  himself  when  nothing  was  due  to  him.  This  collusive  judg- 
ment was  satisfied  by  the  sale  of  goods  on  which  the  plaintiff,  by  his 
prior  judgment,  had  acquired  a  lien,  thus  placing  in  the  defendant's 
hands  the  price  of  goods  which  were  liable  for  the  plaintiff's  judg- 
ment. 

In  all  these  cases  the  plaintiffs  had  a  clear  and  valuable  interest 
in  or  lien  on  certain  property,  which  was  defeated  or  destroyed  by 
the  tortious  acts  of  the  defendants.  Not  so  in  the  case  at  bar.  The 
plaintiff  does  not  allege  that  he  had  any  special  property  or  any 
interest  in  or  claim  on  any  property  which  was  destroyed  or  injured 
by  any  act  of  tlie  defendant.  And  we  are  all  of  opinion  that  he  has 
not  set  forth  any  such  ground  of  action  as  can  be  sustained  upon  any 
known  principles  of  law.    Vernon  v.  Keyes,  13  East,  632. 

Judgment  arrested. 


VOEGLEE  V.  CITY  OF  NOETH  YERNON. 

Supreme  Court  of  Indiana,  May,  1885.     103  Ind.  314. 

Action  of  negligence. 

The  plaintiff's  complaint  alleged  that  through  the  negligence  of  the 
defendant  in  improving  a  street  her  property  was  damaged  by  water 
overflowing  thereon.  The  defendant  in  its  answer  alleged  first  that 
the  improvement  of  the  street  was  made  under  an  ordinance  and  plan 
of  the  Common  Council,  duly  enacted  and  adopted;    and  that  the 


26  VOEGLEli   V.    CITY    OF    NORTH    VERNON. 

improvement  of  the  street  was,  in  the  judgment  of  the  Common 
Council,  necessary  and  proper,  and  that  the  injuries  complained  of 
were  the  result  of  the  improvement  of  the  street:  and  secondly,  that 
at  a  former  trial  between  the  same  parties  for  the  same  cause  of 
action  the  plaintiff  had  recovered  a  judgment  for  damages  and  tliat 
this  judgment  was  in  full  force.  It  appears  that  the  plaintiff  de- 
murred to  these  answers  and  that  the  demurrer  was  sustained  in  the 
lower  court. 

Elliott,  J.  [After  holding  that  the  municipal  corporation  was 
liable  for  negligence  in  the  plan  of  improvement  as  well  as  in  the 
manner  of  executing  the  work,  the  court  proceeded:] 

There  are  several  paragraphs  of  the  answer  pleading  a  former 
adjudication,  and  we  perceive  no  substantial  difference  between 
them,  but,  as  we  are  not  aided  by  a  brief  from  the  appellee,^  and  as 
the  third  paragraph  presents  the  question  in  a  clearer  light  than  the 
others,  we  confine  our  investigation  and  decision  to  that  paragraph. 
The  material  averments  of  this  paragraph,  exhibited  in  a  condensed 
form,  are  these:  On  the  18th  day  of  September,  1879,  the  appellee 
filed  her  complaint  in  the  Jennings  Circuit  Court  against  the  appel- 
lant, and  in  the  action  thus  begun  the  appellee  recovered  judgment 
for  $80  at  the  March  term,  1880.  This  judgment  remains  in  full 
force.  The  complaint  in  that  action  stated  as  a  cause  of  action  the 
injuries  to  the  same  property  from  the  same  negligence  and  unskil- 
ful improvement  of  the  same  street,  as  that  described  and  charged 
in  the  present  action.  The  appellant  has  made  no  other  improvement 
than  the  one  described  in  the  former  complaint,  and  the  injuries 
resulting  to  appellee's  property  were  such  only  as  were  caused  by  the 
improvement  made  prior  to  the  filing  of  the  complaint  in  the  action 
begun  in  September,  1879.  The  concluding  averment  of  the  an- 
swer is  this :  "  And  it  is  the  grading  of  the  same  street  and  the 
building  of  the  same  culverts  and  the  identical  grading  and  building, 
and  the  identical  negligence  and  want  of  care  and  skill  now  com- 
plained of  that  were  complained  of  in  the  former  action  and  not 
others." 

The  answer  presents  a  question  of  great  importance  and  much 
difficulty.  The  theory  of  the  appellee,  as  we  infer  from  the  record, 
is,  that  the  former  action  emliraced  only  such  damages  to  the  real 
estate  as  occurred  prior  to  the  recovery  of  the  judgment  in  that 
action.  The  theory  of  the  appellant  is,  that  the  former  action  em- 
braced all  damages  resulting  to  the  appellee's  property  from  the 
negligent  improvement  of  the  street,  and  that  a  second  action  cannot 
be  maintained  for  the  same  breach  of  duty  that  formed  the  basis 
of  the  first  action. 

There  is  a  material  distinction  between  damages  and  injury. 
Injury  is  the  wrongful  act  or  tort  which  causes  loss  or  harm  to  an- 

'Tliat  Ih,  the  plaintiff;    the  parties  were  reversed  in  the  higher  court. 


INTRODUCTION".  27 

other.  Damages  are  allowed  as  an  indemnity  to  the  person  who 
suffers  loss  or  harm  from  tlie  injury.  The  word  "  injury  "  denotes 
the  illegal  act,  the  term  "  damages  "  means  the  sum  recoverable  as 
amends  for  the  wrong.  The  words  are  sometimes  used  as  synonymous 
terms,  but  they  are,  in  strictness,  words  of  widely  different  meaning. 
There  is  more  than  a  mere  verbal  difference  in  their  meaning,  for 
they  describe  essentially  different  things.  The  law  has  always  recog- 
nized a  difference  between  the  things  described,  for  it  is  often  de- 
clared that  no  action  will  lie  because  the  act  is  damnum  absque  in- 
juria. Broom,  Legal  Max.  195;  Weeks,  Damnum  Absque  Injuria,  7; 
Broom,  Com.   (4th  ed.),  75,  621. 

In  every  valid  cause  of  action  two  elements  must  be  present  —  the 
injury  and  the  damages.^  The  one  is  the  legal  wrong  which  is  to  be 
redressed,  the  other  the  scale  or  measure  of  the  recovery.  Mayne, 
Dam.  1;  1  Sutherland,  Dam.  3.  As  there  may  be  damages  without 
an  injury,  so  there  may  be  an  injury  without  damages.  It  has  many 
times  been  said  that  no  action  will  lie  because  the  injury  produced 
no  damages,  or,  as  the  law  phrase  runs,  the  wrong  is  injuria  sine 
damno. 

The  distinction  between  injury  and  damages  is  an  important  one 
in  this  instance,  and  for  this  reason  we  have  been  careful  to  mark 
the  difference  and  to  enforce  our  statement  by  reference  to  authori- 
ties, although  the  principle  involved  is  a  rudimentary  one.  The 
distinction  is  important,  for  the  reason  that  the  law  is,  that  fresh 
damages,  without  a  fresh  injury,  will  not  authorize  a  second  or  sub- 
sequent action.  The  rule  is  thus  tersely  stated  in  Warner  v.  Bacon, 
8  Gray,  397 :  "  A  fresh  action  cannot  be  brought  unless  there  be 
both  a  new  unlawful  act  and  fresh  damage."  This  rule  is  illustrated 
by  many  cases.  Mr.  Mayne  refers  to  the  case  of  Howell  v.  Young, 
5  B.  &  C.  259,  and  commenting  on  it  says:  "The  statute  c!  limita- 
tions runs  from  the  act  of  negligence,  not  from  the  time  that  an 
injury  accrues;  such  injury  is  merely  consequential  damage,  not  a 
fresh  cause  of  action;  the  damages  then  in  the  original  action  must 
cover  all  the  loss  that  can  ever  arise,  because  no  such  loss  cau  after- 
wards be  compensated."  Mayne,  Dam.  611.  An  American  author 
says:  "A  cause  of  action  and  the  damages  recoverable  therefore  are 
an  entirety.  The  party  injured  must  be  plaintiff,  by  the  common 
law,  and  he  must  demand  all  the  damages  which  he  has  suffered 
or  ever  will  suffer  from  the  injury,  grievance  or  cause  of  action, 
upon  which  his  action  is  founded.  He  cannot  split  a  cause  of  action 
and  bring  successive  suits  for  parts,  because  he  may  not  be  able  at 
first  to  prove  all  the  items  of  the  demand,  or  because  all  the  damages 
have  not  been  suffered."    1  Sutherland,  Dam.  175. 

The  rule  we  are  discussing  applies  to  cases  of  personal  injuries, 
for,  among  the  earliest  of  the  reported  eases,  we  find  it  laid  down  for 

1  See  Ratcliffe  v.   Evans,  post.    p.   684. 


28  VOEGLER   V.    CITY    OF    NORTH    VERNON. 

law  that  in  an  action  for  trespass  to  the  person  the  recovery  of  dam- 
ages must  be  once  for  all,  including  past  as  well  as  prospective  dam- 
ages. Fetter  v.  Beale,  1  Salk.  11.  .  .  .  [The  Court  quoted  from  many 
authorities,  including  Secor  v.  Sturgis,  16  IST.  Y.  548,  Adams  v.  Hast- 
ings Co.,  18  Minn.  260,  Fowle  v.  N.  H.  etc.  Co.,  112  Mass.  334,  and 
proceeded:] 

There  are  many  cases  declaring  and  enforcing  the  general  rule 
that  the  plaintiff  may  recover  in  one  action  all  the  damages  he  suf- 
fers, whether  retrospective  or  prospective,  where  the  injury  which 
causes  the  loss  or  harm  is  of  a  permanent  character,  as  a  street,  a 
canal  or  a  railroad.  All  things  that  proximately  contribute  to  the 
injury  may  be  taken  into  consideration  in  estimating  the  damages, 
and  if  the  injury  extends  so  far  as  to  totally  destroy  the  value  of 
the  property,  then  damages  equal  to  the  value  of  the  property  may 
be  awarded.  Mr.  Freeman  states  the  rule  very  strongly.  His  state- 
ment is  this :  "  All  the  damages  which  can,  by  any  possibility,  result 
from  a  single  tort,  form  an  indivisible  cause  of  action."  He  also 
says :  "  For  damages  alone,  no  action  can  be  permitted.  Hence,  if 
a  recovery  has  once  been  had  for  the  unlawful  act,  no  subsequent 
suit  can  be  sustained."  Freeman,  Judg.,  sec.  241.  The  cases  of 
Cadle  V.  Muscatine  Western  K.  E.  Co.,  44  Iowa,  11,  Finley  v.  Her- 
shey,  41  Iowa,  389,  Illinois  Central  E.  E.  Co.  v.  Grabill,  50  111.  241, 
Elizabethtown,  etc.,  E.  E.  Co.  v.  Combs,  10  Bush,  382,  Jefferson- 
ville,  etc.,  E.  E.  Co.  v.  Esterle,  13  Bush,  667,  illustrate  and  enforce 
the  principles  we  are  discussing. 

In  Fowle  v.  New  Haven  etc.,  Co.,  112  Mass.  534,  S.  C.  17  Am.  E. 
106,  language  is  used  which  so  forcibly  applies  here  that  we  quote  it: 
"  The  case  at  bar,"  said  the  court,  "  is  not  to  be  treated  strictly  in  this 
respect  as  an  action  for  an  abatable  nuisance.  More  accurately  it  is 
an  action  against  the  defendant  for  the  construction  of  a  public  work 
under  its  charter  in  such  a  manner  as  to  cause  unnecessary  damage 
by  want  of  reasonable  care  and  skill  in  its  construction.  For  such  an 
injury  the  remedy  is  at  common  law.  And  if  it  results  from  a  cause 
which  is  either  permanent  in  its  character,  or  which  is  treated  as 
permanent  by  the  parties,  it  is  proper  that  entire  damages  should  be 
assessed  with  reference  to  past  and  probable  future  injury." 

As  probable  future  damages  may  be  taken  into  consideration  in 
an  action  to  recover  for  a  loss  caused  by  the  negligence  of  corporate 
officers  in  constructing  a  public  work  of  a  permanent  character,  the 
plaintiff  in  such  an  action  can  recover  all  the  damages  he  has  sus- 
tained, and  in  such  cases  no  second  action  can  be  maintained.  To 
permit  a  second  action  to  recover  damages  resulting  from  the  negli- 
gent grading  of  a  street,  would  be  to  allow  successive  damages  to  be 
awarded  where  there  was  no  fresh  wrong.  Great  injustice  would 
almost  inevitably  result  from  a  rule  permitting  successive  actions, 
for  it  would  bo  impossible  to  prevent  damages  from  being  twice  as- 
sessed for  the  same  wrong. 


INTRODUCTION.  29 

The  ultimate  conclusions  to  which  these  authorities  lead  are :  First. 
That  where  there  is  one  cause  of  action,  all  the  damages  must  be 
recovered  in  one  suit,  and  for  fresh  damages  resulting  from  the  orig- 
inal wrong  a  second  action  cannot  be  maintained.  Second.  Where 
the  cause  of  action  is  the  negligence  and  unskilfulness  of  the  officers 
of  a  municipal  corporation  in  the  improvement  of  a  street,  the  in- 
jury is  complete  and  permanent,  constituting  but  one  cause  of  action, 
and  in  a  suit  on  that  cause  of  action  all  damages,  present  and  prospec- 
tive, may  be  recovered,  and  for  fresh  damages  resulting  from  the 
improvement  a  second  action  will  not  lie. 

The  complaint  of  the  appellee,  as  we  have  seen,  is  based  upon  the 
negligence  of  the  corporate  officers  in  improving  a  street  and  the  im- 
provement is  a  permanent  one,  so  that  the  tort  which  formed  the 
basis  of  the  action  was  complete  when  damages  resulted.  The  answer 
avers,  and  the  demurrer  admits,  that  there  was  no  new  wrong  or 
negligence.  As  the  pleadings  stand,  there  is  a  single  wrong  and  noth- 
ing more.  The  fresh  damages  do  not,  as  the  pleadings  aver,  arise 
from  a  new  or  fresh  wrong.  The  case,  therefore,  is  not  within  the 
authorities  which  hold  that  where  there  is  a  new  neglect  or  a  fresh 
wrong,  there  may  be  a  s'econd  action. 

The  answer  avers  that  the  injury  complained  of  is  the  same  as  that 
declared  on  in  the  former  action.  It  goes  even  further,  for  it  affirma- 
tively shows  that  no  improvement  has  been  made,  and  that  no  grading 
has  been  done  since  that  described  in  the  former  complaint.  The 
causes  of  action  are,  therefore,  the  same.  Where  the  answer  avers 
the  causes  of  action  to  be  the  same,  and  the  record  does  not  show  them 
to  be  dijfferent,  the  averment  is  taken  to  be  true  on  demurrer.  Cutler 
V.  Cox,  2  Blackf.  178. 

If  the  causes  of  action  are  not  the  same,  that  fact  must  be  replied. 
James  v.  State,  7  Blackf.  325.  We  have,  upon  the  pleadings,  therefore, 
a  case  where  there  are  fresh  damages,  but  where  there  is  no  fresh  cause 
of  action,  for  the  utmost  that  can  be  yielded  to  the  appellee  is,  that 
the  record  shows  that  damages  have  resulted  since  the  first  action, 
flowing,  however,  from  the  original  wrong.  We  need  not  decide  what 
might  be  successfully  replied;  we  simply  decide  the  question  before 
us,  and  our  decision  is  that  the  answer  sufficiently  pleads  a  former 
adjudication. 

We  have  already  placed  stress  upon  the  fact  that  the  construction 
of  the  highway  is  permanent,  and  that  the  wrong  was  complete  when 
the  street,  as  a  permanent  work,  was  finished  and  damages  resulted. 
We  deem  it  proper  to  emphasize  this  element  of  the  case,  for  we  can 
readily  conceive  cases  of  an  essentially  different  character  where  a 
very  different  rule  would  apply.  We  can  conceive  of  cases  where  a 
temporary  wrong  might  be  done  under  such  circumstances  as  would 
make  it  reasonable  to  presume  that  the  defendant  would  right  the 
wrong  before  a  recurrence  of  harm  or  loss,  and  in  such  cases  it  might 


30  VOEGLEE   V.   CITY   OF   NORTH  VERNON. 

well  be  that  the  plaintiff  could  bring  a  second  action.  We  know  that 
there  are  cases  where  it  is  proper  to  presume  that  the  wrong-doer  will 
not  maintain  tlie  unlawful  thing  that  caused  the  harm  or  loss.  Mayne, 
Dam.,  141,  section  110.  But  the  case  upon  which  we  are  pronouncing 
judgment,  and  to  which  we  confine  our  decision,  is  one  where  the 
improvement  of  the  street  was  a  completed  and  permanent  fact,  and 
where  the  parties  must  presume  that  it  was  permanent  in  its  character, 
and  that  it  was  intended  that  the  thing  done  should  remain  unchanged. 
It  cannot  be  presumed  that  municipal  officers,  having  built  a  street 
or  road,  intended  it  to  be  temporary;  a  presumption  that  the  wrong 
was  not  of  a  permanent  character  might,  perhaps,  obtain  where  a 
natural  watercourse  is  temporarily  obstructed,  or  where,  in  the  course 
of  improving  a  street,  water  was  thrown  upon  a  lot;  but  it  cannot 
prevail  where  the  improvement  of  a  street  is  complete  and  the  street 
permanently  constructed. 

This  is  not  the  case  of  a  nuisance.  It  is  the  case  of  a  negligent 
improvement  of  a  street.  The  improvement  was  in  itself  rightful 
and  legal,  but  the  manner  in  which  the  improvement  was  made  was 
wrongful.  The  wrong  was  not  in  grading  the  street,  but  in  the 
manner  of  doing  it.  It  is  not  a  nuisance  for  a  municipal  corporation 
to  grade  its  streets,  but  it  is  an  actionable  wrong  to  do  it  negligently. 
The  wrong  in  negligently  grading  the  street  is  the  basis  of  the  action, 
for  there  are  no  facts  alleged  constituting  a  nuisance.  It  is  not  a 
nuisance  to  do  what  the  law  authorizes,  but  it  may  be  a  tort  to  do 
the  authorized  act  in  a  negligent  manner.  It  is  evident,  therefore, 
that  the  cases  which  hold  that  the  continuance  of  a  nuisance  will 
supply  grounds  for  successive  actions  have  no  influence  upon  this  case. 

Judgment  reversed. 


SPECIFIC  TORTS. 

PART  I. 

CULPABLE    MIND. 

Wrongful  Means:  Fraud. 


CHAPTER   L 

DECEIT. 

PASLEY   v.   FEEEMAF. 

King's  Bench  of  England,  Hilary  Term,  1789.  3  T.  R.  51. 

This  was  an  action  in  the  nature  of  a  writ  of  deceit,  to  which  the 
defendant  pleaded  the  general  issue.  And  after  a  verdict  for  the 
plaintiffs  on  the  third  count,  a  motion  was  made  for  a  new  trial,  and, 
that  being  refused,  another  in  arrest  of  judgment. 

The  third  count  alleged  in  substance  that  the  defendant,  intending 
to  deceive  and  defraud  the  plaintiffs,  and  knowing  the  contrary  to  be 
true,  falsely  and  fraudulently  represented  to  the  plaintiffs  that  one 
J.  C.  Falch  was  a  person  safely  to  be  trusted  in  the  purchase  on  credit 
of  sixteen  bags  of  cochineal;  that  the  plaintiffs,  not  knowing  that 
the  representation  was  false,  but  believing  it  to  be  true,  were  induced 
to  sell  to  said  J.  C.  F.  sixteen  bags  of  cochineal  on  credit;  and  that 
neither  said  J.  C.  F.  nor  any  one  else  has  ever  paid  for  the  same;  to 
the  damage  of  the  plaintiffs,  &c. 

Grose,  J}  Upon  the  face  of  this  count  in  the  declaration,  no 
privity  of  contract  is  stated  between  the  parties.  No  consideration 
arises  to  the  defendant ;  and  he  is  in  no  situation  in  which  the  law 
considers  him  in  any  trust,  or  in  which  it  demands  from  him  any 
account  of  the  credit  of  Falch.  He  appears  not  to  be  interested  in 
any  transaction  between  the  plaintiffs  and  Falch,  nor  to  have  colluded 
with  them ;  but  he  knowingly  asserted  a  falsehood,  by  saying  that 
Falch  might  be  safely  intrusted  with  the  goods,  and  given  credit  to, 
for  the  purpose  of  inducing  the  plaintiffs  to  trust  him  with  them, 
by  which  the  plaintiffs  lost  the  value  of  the  goods.  Tben  this  is  an 
action  against  the  defendant  for  making  a  false  affirmation,  or  telling 

*  Dissenting. 

3T 


32  PASLEY   V.   FREEMAN".  [CHAP,    I. 

a  lie,  respecting  the  credit  of  a  third  person,  with  intent  to  deceive, 
by  which  the  third  person  was  ^  damnified ;  and  for  the  damages 
suffered,  the  plaintiffs  contend  that  the  defendant  is  answerable  in 
an  action  upon  the  case.  It  is  admitted  that  the  action  is  new  in 
point  of  precedent;  but  it  is  insisted  that  the  law  recognizes  princi- 
ples on  which  it  may  be  supported.  The  principle  upon  which  it  is 
contended  to  lie  is  that,  wherever  deceit  or  falsehood  is  practised  to 
the  detriment  of  another,  the  law  will  give  redress.  This  proposition 
I  controvert,  and  shall  endeavor  to  show  that,  in  every  case  where 
deceit  or  falsehood  is  practised  to  the  detriment  of  another,  the  law 
will  not  give  redress;  and  I  say  that  by  the  law,  as  it  now  stands,  no 
action  lies  against  any  person  standing  in  the  predicament  of  this 
defendant  for  the  false  affirmation  stated  in  the  declaration.  If  the 
action  can  be  supported,  it  must  be  upon  the  ground  that  there  exists 
in  this  case  what  the  law  deems  damnum  cum  injuria.  If  it  does,  I 
admit  that  the  action  lies;  and  I  admit  that  upon  the  verdict  found 
the  plaintiffs  appear  to  have  been  damnified.  But  whether  there  has 
been  injuria,  a  wrong,  a  tort,  for  which  an  action  lies,  is  a  matter  of 
law.  The  tort  complained  of  is  the  false  affirmation  made  with  in- 
tent to  deceive ;  and  it  is  said  to  be  an  action  upon  the  case  analogous 
to  the  old  writ  of  deceit.  When  this  was  first  argued  at  the  bar, 
on  the  motion  for  a  new  trial,  I  confess  I  thought  it  reasonable  that 
the  action  should  lie;  but,  on  looking  into  the  old  books  for  cases 
in  which  the  old  action  of  deceit  has  been  maintained  upon  the  false 
affirmation  of  the  defendant,  I  have  changed  my  opinion.  The  cases 
on  this  head  are  brought  together  in  Bro.  tit.  Deceit,  pi.  29,  and  in 
Fitz.  Abr.  I  have  likewise  looked  into  Danvers,  Kitchins,  and 
Comyns,  and  I  have  not  met  with  any  case  of  an  action  upon  a  false 
affirmation,  except  against  a  party  to  a  contract,  and  where  there  is 
a  promise,  either  express  or  implied,  that  the  fact  is  true,  which  ii 
misrepresented;  and  no  other  case  has  been  cited  at  the  bar.  Then 
if  no  such  case  has  ever  existed,  it  furnishes  a  strong  objection  against 
the  action,  which  is  brought  for  the  first  time  for  a  supposed  injury, 
which  has  been  daily  committed  for  centuries  past.  For  I  believe 
there  has  been  no  time  when  men  have  not  been  constantly  damnified 
by  the  fraudulent  misrepresentations  of  others;  and  if  such  an  action 
would  have  lain,  there  certainly  has  been,  and  will  be,  a  plentiful 
source  of  litigation,  of  which  the  public  are  not  hitherto  aware.  A 
variety  of  cases  may  be  put.  Suppose  a  man  recommends  an  estate 
to  another,  as  knowing  it  to  be  of  greater  value  than  it  is ;  when  the 
purchaser  has  bought  it,  he  discovers  the  defect,  and  sells  the  estate 
for  less  than  he  gave :  why  may  not  an  action  be  brought  for  the  loss 
upon  anv  principle  that  will  support  this  action?  And  yet  such  an 
action  has  never  been  att(>mpted.  Or  suppose  a  person  present  at  the 
sale  of  a  horse  asserts  that  he  was  his  horse,  and  that  he  knows  him 

■>  sic    for  idalntllTs  were. 


CHAP.    I.]  DECEIT.  33 

to  be  sound  and  sure-footed,  when,  in  fact,  the  horse  is  neither  the 
one  nor  the  other;  according  to  the  principle  contended  for  by  the 
plaintiffs,  an  action  lies  against  the  person  present  as  well  as  the  seller, 
and  the  purchaser  has  two  securities.  And  even  in  this  very  case,  if 
the  action  lies,  the  plaintiffs  will  stand  in  a  peculiarly  fortunate  pre- 
dicament, for  they  will  then  have  the  responsibility  both  of  Falch  and 
the  defendant.  And  they  will  be  in  a  better  situation  than  they  would 
have  been  if,  in  the  conversation  that  passed  between  them  and  the 
defendant,  instead  of  asserting  that  Falch  might  safely  be  trusted, 
the  defendant  had  said,  "  If  he  do  not  pay  for  the  goods,  I  will ; " 
for  then,  undoubtedly,  an  action  would  not  have  lain  against  the 
defendant.  Other  and  stronger  cases  may  be  put  of  actions  that 
must  necessarily  spring  out  of  any  principle,  upon  which  this  can  be 
supported,  and  yet  which  were  never  thought  of  till  the  present  action 
was  brought.  Upon  what  principle  is  this  act  said  to  be  an  injury? 
The  plaintiffs  say,  on  the  ground  that,  when  the  question  was  asked, 
the  defendant  was  bound  to  tell  the  truth.  There  are  cases,  I  admit, 
where  a  man  is  bound  not  to  misrepresent,  but  to  tell  the  truth ;  but 
no  such  case  has  been  cited,  except  in  the  case  of  contracts;  and  all 
the  cases  of  deceit  for  misinformation  may,  it  seems  to  me,  be  turned 
into  actions  of  assumpsit.  And  so  far  from  a  person  being  bound  in 
a  case  like  the  present  to  tell  the  truth,  the  books  supply  me  with 
a  variety  of  cases,  in  which  even  the  contracting  party  is  not  liable 
for  a  misrepresentation.  There  are  cases  of  two  sorts  in  which, 
though  a  man  is  deceived,  he  can  maintain  no  action.  The  first  class 
of  cases  (though  not  analogous  to  the  present)  is  where  the  affirma- 
tion is  that  the  thing  sold  has  not  a  defect  which  is  a  visible  one; 
there  the  imposition,  the  fraudulent  intent,  is  admitted,  but  it  is  no 
tort.  The  second  head  of  cases  is  where  the  affirmation  is  (what  is 
called  in  some  of  the  books)  a  nude  assertion,  such  as  the  party  de- 
ceived may  exercise  his  own  judgment  upon ;  as  where  it  is  matter  of 
opinion,  where  he  may  make  inquiries  into  the  truth  of  the  assertion, 
and  it  becomes  his  own  fault  from  laches  that  he  is  deceived.  1  Roll. 
Abr.  101;  Yelv.  20;  1  Sid.  14(5;  Cro.  Jac.  386;  Bayly  v.  Merrel. 
In  Harvey  v.  Young,  Yelv.  20,  G.  S.,  who  had  a  term  for  years,  af- 
firmed to  F.  D.  that  the  term  was  worth  £150  to  be  sold,  upon  which 
F.  D.  gave  £150,  and  afterwards  could  not  get  more  than  £100  for  it, 
and  then  brought  his  action;  and  it  was  alleged  that  this  matter  did 
not  prove  any  fraud,  for  it  was  only  a  naked  assertion  that  the  term 
was  worth  so  much,  and  it  was  the  plaintiff's  folly  to  give  credit  to 
such  assertion.  But  if  the  defendant  had  warrnnterl  the  term  to  be 
of  such  a  value  to  be  sold,  and  upon  that  the  plaintiff  had  bought  it, 
it  would  have  been  otherwise;  for  the  warranty  given  by  the  defend- 
ant is  a  matter  to  induce  confidence  and  trust  in  the  plaintiff.  Tins 
case,  and  the  passage  in  1  Boll.  Abr.  101,  are  recognized  in  1  Sid.  146. 
How,  then,  are  the  cases?    ISTone  exist  in  which  such  an  action  as  the 


34  PASLEY    V.   FREEMAN.  [CHAP.    I. 

present  has  been  brought;  none,  in  which  any  principle  applicable  to 
the  present  case  has  been  laid  down  to  prove  that  it  will  lie ;  not  even 
a  dictum.  But  from  the  cases  cited  some  principles  may  be  extracted 
to  show  that  it  cannot  be  sustained:  1st.  That  what  is  fraud,  which 
will  support  an  action,  is  matter  of  law.  2d.  That  in  every  case  of 
fraudulent  misrepresentation,  attended  with  damage,  an  action  will 
not  lie  even  between  contracting  parties.  3d.  That  if  the  assertion 
be  a  nude  assertion,  it  is  that  sort  of  misrepresentation  the  truth  of 
which  does  not  lie  merely  in  the  knowledge  of  the  defendant,  but  may 
be  inquired  into,  and  the  plaintiff  is  bound  so  to  do;  and  he  cannot 
recover  a  damage  which  he  has  suffered  by  his  laches.  Then  let  us 
consider  how  far  the  facts  of  the  case  come  within  the  last  of  these 
principles.  The  misrepresentation  stated  in  the  declaration  is  re- 
specting the  credit  of  Falch ;  the  defendant  asserted  that  the  plaintiffs 
might  safely  give  him  credit;  but  credit  to  which  a  man  is  entitled 
is  matter  of  judgment  and  opinion,  on  which  different  men  might 
form  different  opinions,  and  upon  which  the  plaintiffs  might  form 
their  own,  to  mislead  which  no  fact  to  prove  the  good  credit  of  Falch 
is  falsely  asserted.  It  seems  to  me,  therefore,  that  any  assertion  rela- 
tive to  credit,  especially  where  the  party  making  it  has  no  interest, 
nor  is  in  any  collusion  with  the  person  respecting  whose  credit  the 
assertion  is  made,  is  like  the  case  in  Yelverton  respecting  the  value  of 
the  term.  But  at  any  rate,  it  is  not  an  assertion  of  a  fact  peculiarly 
in  the  knowledge  of  the  defendant.  Whether  Falch  deserved  credit 
depended  on  the  opinion  of  many;  for  credit  exists  on  the  good 
opinion  of  many.  Eespecting  this  the  plaintiffs  might  have  inquired 
of  others,  who  knew  as  much  as  the  defendant;  it  was  their  fault 
that  they  did  not,  and  they  have  suffered  damage  by  their  own 
laches.  It  was  owing  to  their  own  gross  negligence  that  they  gave 
credence  to  the  assertion  of  the  defendant,  without  taking  pains  to 
satisfy  themselves  that  that  assertion  was  founded  in  fact,  as  in  the 
case  of  Bayly  v.  Merrel.  I  am,  therefore,  of  opinion  that  this  action 
is  as  novel  in  principle  as  it  is  in  precedent,  that  it  is  against  the 
principles  to  be  collected  from  analogous  cases,  and  consequently  that 
it  cannot  be  maintained. 

BuLLER,  J.  The  foundation  of  this  action  is  fraud  and  deceit  in 
the  defendant,  and  damage  to  the  plaintiffs.  And  the  question  is, 
whether  an  action  thus  founded  can  be  sustained  in  a  court  of  law. 
Fraud  without  damage,  or  damage  without  fraud,  gives  no  cause  of 
action;  but  where  these  two  concur,  an  action  lies.  Per  Croke,  J.,  3 
Bulst.  95.  But  it  is  contended  that  this  was  a  bare,  naked  lie;  that, 
as  no  collusion  with  Falch  is  charged,  it  does  not  amount  to  a  fraud; 
and,  if  there  were  any  fraud,  the  nature  of  it  is  not  stated.  And  it 
was  supposed  by  the  counsel,  who  originally  made  the  motion,  that  no 
action  could  be  maintained  unless  the  defendant,  who  made  this  false 
assertion,  had  an  interest  in  so  doing.    I  agree  that  an  action  cannot 


CHAP.    I.]  DECEIT.  35 

be  supported  for  telling  a  bare,  naked  lie;  but  that  I  define  to  be, 
saying  a  thing  whicli  is  false,  knowing  or  not  knowing  it  to  be  so, 
and  without  any  design  to  injure,  cheat,  or  deceive  another  person. 
Every  deceit  comprehends  a  lie;  but  a  deceit  is  more  than  a  lie,  on 
account  of  the  view  with  which  it  is  practised,  its  being  coupled  with 
some  dealing,  and  the  injury  which  it  is  calculated  to  occasion,  and 
does  occasion,  to  another  person.  Deceit  is  a  very  extensive  head  in 
the  law;  and  it  will  be  proper  to  take  a  short  view  of  some  of  the 
cases  which  have  existed  on  the  subject,  to  see  how  far  the  courts  have 
gone,  and  what  are  the  principles  upon  which  they  have  decided.  I 
lay  out  of  the  question  the  case  in  2  Cro.  196,  and  all  other  cases 
which  relate  to  freehold  interests  in  lands;  for  they  go  on  the  special 
reason  that  the  seller  cannot  have  them  without  title,  and  the  buyer 
is  at  his  peril  to  see  it.  But  the  cases  cited  on  the  part  of  the  defend- 
ant deserving  notice  are  Yelv.  20,  Carth.  90,  Salk.  210.  The  first  of 
these  has  been  fully  stated  by  my  brother  Grose;  but  it  is  to  be  ob- 
served that  the  book  does  not  affect  to  give  the  reasons  on  which  the 
court  delivered  their  judgment;  but  it  is  a  case  quoted  by  counsel 
at  the  bar,  who  mentions  what  was  alleged  by  counsel  in  the  other 
ease.  If  the  court  M^ent  on  a  distinction  between  the  words  "war- 
ranty "  and  "  affirmation,"  the  case  is  not  law ;  for  it  was  rightly  held 
by  Holt,  C.  J.,  in  the  subsequent  cases,  and  has  been  uniformly 
adopted  ever  since,  that  an  affirmation  at  the  time  of  a  sale  is  a  war- 
ranty, provided  it  appear  on  evidence  to  have  been  so  intended.  But 
the  true  ground  of  that  determination  was  that  the  assertion  was  of 
mere  matter  of  judgment  and  opinion;  of  a  matter  of  which  the 
defendant  had  no  particular  knowledge,  but  of  which  many  men  will 
be  of  many  minds,  and  which  is  often  governed  by  whim  and  caprice. 
Judgment,  or  opinion,  in  such  cases,  implies  no  knowledge.  And  here 
this  case  differs  materially  from  that  in  Yelverton :  my  brother  Grose 
considers  this  assertion  as  mere  matter  of  opinion  only,  but  I  differ 
from  him  in  that  respect.  For  it  is  stated  on  this  record  that  the 
defendant  knew  that  the  fact  was  false.  The  case  in  Yelverton  ad- 
mits that,  if  there  had  been  fraud,  it  would  have  been  otherwise.  The 
case  of  Crosse  v.  Gardner,  Carth.  90,  was  upon  an  affirmation  that 
oxen  which  the  defendant  had  in  his  possession,  and  sold  to  the  plain- 
tiff, were  his,  when  in  truth  they  belonged  to  another  person.  The 
objection  against  the  action  was  that  the  declaration  neither  stated 
that  the  defendant  deceitfully  sold  them,  or  that  he  knew  them  to  be 
the  property  of  another  person;  and  a  man  may  be  mistaken  in  his 
property  and  right  to  a  thing  without  any  fraud  or  ill  intent.  Ex 
concessis  therefore  if  there  were  fraud  or  deceit,  the  action  would  lie; 
and  knowledge  of  the  falsehood  of  the  thing  asserted  is  fraud  and 
deceit.  But,  notwithstanding  these  objections,  the  court  held  that 
the  action  lay,  because  the  plaintiff  had  no  means  of  knowing  to 
whom  the  property  belonged  but  only  by  the  possession.    And  in  Cro. 


36  PASLEY   V.    FREEMAN.  [CIIAP.    I. 

Jac.  474,  it  was  held  that  affirming  them  to  be  his,  knowing  them  to 
be  a  stranger's,  is  the  offence  and  cause  of  action.  The  case  of 
Medina  v.  Stoughton,  Salk.  210,  in  the  point  of  decision,  is  the  same 
as  Crosse  v.  Gardner;  but  there  is  an  obiter  dictum  of  Holt,  C.  J., 
that  where  the  seller  of  a  personal  thing  is  out  of  possession,  it  is 
otherwise;  for  there  may  be  room  to  question  the  seller's  title,  and 
caveat  emptor  in  such  case  to  have  an  express  warranty  or  a  good 
title.  This  distinction  by  Holt  is  not  mentioned  by  Lord  Raym.  593, 
who  reports  the  same  case;  and  if  an  affirmation  at  the  time  of  sale 
be  a  warranty,  I  cannot  feel  a  distinction  between  the  vendor's  being 
in  or  out  of  possession.  The  thing  is  bought  of  him,  and  in  conse- 
quence of  his  assertion ;  and,  if  there  be  any  difference,  it  seems  to  me 
that  the  case  is  strongest  against  the  vendor  when  he  is  out  of  pos- 
session, because  then  the  vendee  has  nothing  but  the  warranty  to  rely 
on.  These  cases,  then,  are  so  far  from  being  authorities  against  the 
present  action,  that  they  show  that,  if  there  be  fraud  or  deceit,  the 
action  will  lie;  and  that  knowledge  of  the  falsehood  of  the  thing 
asserted  is  fraud  and  deceit.  Collusion,  then,  is  not  necessary  to  con- 
stitute fraud.  In  the  case  of  a  conspiracy,  there  must  be  a  collusion 
between  two  or  more  to  support  an  indictment;  but  if  one  man  alone 
be  guilty  of  an  offence  which,  if  practised  by  two,  would  be  the  sub- 
ject of  an  indictment  for  a  conspiracy,  he  is  civilly  liable  in  an  action 
for  reparation  of  damages  at  the  suit  of  the  person  injured.  That 
knowledge  of  the  falsehood  of  the  thing  asserted  constitutes  fraud, 
though  there  be  no  collusion,  is  further  proved  by  the  case  of  Eisney 
V.  Selby,  Salk.  211,  where,  upon  a  treaty  for  the  purchase  of  a  house, 
the  defendant  fraudulently  affirmed  that  the  rent  was  £30  per  annum, 
when  it  was  only  £20  per  annum,  and  the  plaintiff  had  his  judgment; 
for  the  value  of  the  rent  is  a  matter  which  lies  in  the  private  knowl- 
edge of  the  landlord  and  tenant;  and  if  they  affirm  the  rent  to  be 
more  than  it  is,  the  purchaser  is  cheated,  and  ought  to  have  a  remedy 
for  it.  No  collusion  was  there  stated;  nor  does  it  appear  that  the 
tenant  was  ever  asked  a  question  about  the  rent,  and  yet  the  pur- 
chaser might  have  applied  to  him  for  information;  but  the  judg- 
ment proceeded  wholly  upon  the  ground  that  the  defendant  knew  that 
what  he  asserted  was  false.  And,  by  the  words  of  the  book,  it  seems 
that,  if  the  tenant  had  said  the  same  thing,  he  also  would  have  been 
liable  to  an  action.  If  so,  that  would  be  an  answer  to  the  objection 
that  the  defendant  in  this  case  had  no  interest  in  the  assertion  which 
he  made.  But  I  shall  not  leave  this  point  on  the  dictum  or  inference 
which  may  be  collected  from  that  case.  If  A,  by  fraiid  and  deceit, 
cheat  B  out  of  £1000,  it  makes  no  difference  to  B  whether  A  or  any 
other  person  pockets  that  £1000.  He  has  lost  his  money;  and,  if  he 
can  fix  fraud  upon  A,  reason  seems  to  say  that  he  has  a  right  to  seek 
fiatisfaclion  against  him.  Authorities  are  not  wanting  on  this  point. 
1  Koll.  Abr.  91,  pi.  7.     If  the  vendor  affirm  that  the  goods  are  the 


CHAP.   I.]  DECEIT.  37 

goods  of  a  stranger,  his  friend,  and  that  he  had  authorit}'  from  him 
to  sell  them,  and,  upon  that,  B  buys  them,  when  in  truth  they  are 
the  goods  of  another,  yet,  if  he  sell  them,  fraudulently  and  falsely, 
on  this  pretence  of  authority,  though  he  do  not  warrant  them,  and 
though  it  be  not  averred  that  he  sold  them,  knowing  them  to  be  the 
goods  of  the  stranger,  yet  B  shall  have  an  action  for  this  deceit.  It 
is  not  clear  from  this  case  whether  the  fraud  consisted  in  having  no 
authority  from  his  friend,  or  in  knowing  that  the  goods  belonged  to 
another  person:  what  is  said  at  the  end  of  the  case  only  proves  that 
"  falsely  "  and  "  fraudulently  "  are  equivalent  to  "  knowingly."  If  the 
first  were  the  fact  in  the  case,  namely,  that  he  had  no  authority,  the 
case  does  not  apply  to  this  point;  but  if  he  had  an  authority  from 
his  friend,  whatever  the  goods  were  sold  for,  his  friend  was  entitled 
to,  and  he  had  no  interest  in  them.  But,  however  that  might  be,  the 
next  case  admits  of  no  doubt.  For,  in  1  Eoll.  Abr.  100,  pi.  1,  it  was 
held,  that  if  a  man  acknowledge  a  fine  in  my  name,  or  acknowledge 
a  judgment  in  an  action  in  my  name  of  my  land,  this  shall  bind  me 
forever;  and,  therefore,  I  may  have  a  writ  of  deceit  against  him  who 
acknowledged  it.  So  if  a  man  acknowledge  a  recognizance,  statute- 
merchant  or  staple,  there  is  no  foundation  for  supposing  that  in  that 
case  the  person  acknowledging  the  fine  or  judgment  was  the  same  per- 
son to  whom  it  was  so  acknowledged.  If  that  had  been  necessary,  it 
would  have  been  so  stated ;  but  if  it  were  not  so,  he  who  acknowledged 
the  fine  had  no  interest  in  it.  Again,  in  1  Roll.  Abr.  95,  pi.  25,  it  is 
said,  "  If  my  servant  lease  my  land  to  another  for  years,  reserving  a 
rent  for  me,  and,  to  persuade  the  lessee  to  accept  it,  he  promise  that 
he  shall  enjoy  the  land  without  incumbrances,  if  the  land  be  incum- 
bered, &c.,  the  lessee  may  have  an  action  on  the  case  against  my 
servant,  because  he  made  an  express  warranty."  Here,  then,  is  a  case 
in  which  the  party  had  no  interest  whatever.  The  same  case  is 
reported  in  Cro.  Jac.  425;  but  no  notice  is  taken  of  this  point,  prob- 
ably because  the  reporter  thought  it  immaterial  whether  the  warranty 
be  by  the  master  or  servant.  And  if  the  warranty  be  made  at  the  time 
of  the  sale,  or  before  the  sale,  and  the  sale  is  upon  the  faith  of  the 
warranty,  I  can  see  no  distinction  between  the  cases.  The  gist  of  the 
action  is  fraud  and  deceit;  and  if  that  fraud  and  deceit  can  be  fixed 
by  evidence  on  one  who  had  no  interest  in  his  iniquity,  it  proves  his 
malice  to  be  the  greater.  But  it  was  objected  to  this  declaration  that, 
if  there  were  any  fraud,  the  nature  of  it  is  not  stated.  To  this  the 
declaration  itself  is  so  direct  an  answer,  that  the  case  admits  of  no 
other.  The  fraud  is  that  the  defendant  procured  the  plaintiffs  to  sell 
goods  on  credit  to  one  whom  they  would  not  otherwise  have  trusted, 
by  asserting  that  which  he  knew  to  be  false.  Here,  then,  is  the  fraud 
and  the  means  by  which  it  was  committed ;  and  it  was  done  with  a 
view  to  enrich  Falch  by  impoverishing  the  plaintiffs,  or,  in  other 
words,  by  cheating  the  plaintiffs  out  of  their  goods.    The  cases  which 


38  PASLEY   V.   FREEMAN.  [CHAP.   I. 

I  have  stated,  and  Sid.  14G,  and  1  Keb.  522,  prove  thai  the  declara- 
tion states  more  than  is  necessary;  for  "  f raudulenter "  without 
"  sciens/'  or  "  sciens  "  without  "  fraudulenter,"  would  be  sufficient  to 
support  the  action.  But,  as  Mr.  J.  Twisden  said  in  that  case,  the 
fraud  must  be  proved.  The  assertion  alone  will  not  maintain  the 
action;  but  the  plaintiff  must  go  on  to  prove  that  it  was  false,  and 
that  the  defendant  knew  it  to  be  so:  by  what  means  that  proof  is  to 
be  made  out  in  evidence  need  not  be  stated  in  the  declaration.  Some 
general  arguments  were  urged  at  the  bar  to  show  that  mischiefs  and 
inconveniences  would  arise  if  this  action  were  sustained;  for  if  a 
man  who  is  asked  a  question  respecting  another's  responsibility  hesi- 
tate or  is  silent,  he  blasts  the  character  of  the  tradesman;  and  if  he 
say  that  he  is  insolvent,  he  may  not  be  able  to  prove  it.  But  let  us 
see  what  is  contended  for:  it  is  nothing  less  than  that  a  man  may 
assert  that  which  he  knows  to  be  false,  and  thereby  do  an  everlasting 
injury  to  his  neighbor,  and  yet  not  be  answerable  for  it.  This  is  as 
repugnant  to  law  as  it  is  to  morality.  Then  it  is  said  that  the  plain- 
tiffs had  no  right  to  ask  the  question  of  the  defendant.  But  I  do  not 
agree  in  that;  for  the  plaintiffs  had  an  interest  in  knowing  what  the 
credit  of  Falch  was.  It  was  not  the  inquiry  of  idle  curiosity,  but  it 
was  to  govern  a  very  extensive  concern.  The  defendant  undoubtedly 
had  his  option  to  give  an  answer  to  the  question  or  not;  but  if  he 
gave  none,  or  said  he  did  not  know,  it  is  impossible  for  any  court  of 
Justice  to  adopt  the  possible  inferences  of  a  suspicious  mind  as  a 
ground  for  grave  judgment.  All  that  is  required  of  a  person  in  the 
defendant's  situation  is  that  he  shall  give  no  answer,  or  that,  if  he 
do,  he  shall  answer  according  to  the  truth  as  far  as  he  knows.  The 
reasoning  in  the  case  of  Coggs  v.  Barnard,  which  was  cited  by  the 
plaintiff's  counsel,  is,  I  think,  very  applicable  to  this  part  of  the  case. 
If  the  answer  import  insolvency,  it  is  not  necessary  that  the  defendant 
should  be  able  to  prove  that  insolvency  to  a  jury;  for  the  law  pro- 
tects a  man  in  giving  that  answer,  if  he  does  it  in  confidence  and  with- 
out malice.  No  action  can  be  maintained  against  him  for  giving 
such  an  answer,  unless  express  malice  can  be  proved.  From  the  cir- 
cumstance of  the  law  giving  that  protection,  it  seems  to  follow  as  a 
necessary  consequence,  that  the  law  not  only  gives  sanction  to  the 
question,  but  requires  that,  if  it  be  answered  at  all,  it  shall  be  an- 
swered honestly.  There  is  a  case  in  the  books  which,  though  not  much 
to  be  relied  on,  yet  serves  to  show  that  this  kind  of  conduct  has  never 
been  thought  innocent  in  Westminster  Hall.  In  Eex  v.  Gunston, 
1  Str.  589,  the  defendant  was  indicted  for  pretending  that  a  person 
of  no  reputation  was  Sir  J.  Thornycraft,  whereby  the  prosecutor  was 
induced  to  trust  him;  and  the  court  refused  to  grant  a  certiorari, 
unless  a  special  grounrl  were  laid  for  it.  If  the  assertion  in  that  case 
had  been  wholly  innocent,  the  court  would  not  liave  hesitated  a  mo- 
ment.    How,  indeed,  an  indictment  could  be  maintained  for  that  I 


CHAP.    I.]  DECEIT.  39 

do  not  well  understand;  nor  have  I  learnt  what  became  of  it.  The 
objection  to  the  indictment  is  that  it  was  merely  a  private  injury; 
but  that  is  no  answer  to  an  action.  And  if  a  man  will  wickedly 
assert  that  which  he  knows  to  be  false,  and  thereby  draws  his  neigh- 
bor into  a  heavy  loss,  even  though  it  be  under  the  specious  pretence 
of  serving  his  friend,  I  say  "  ausis  talibus  istis  non  jura  subserviunt." 

AsHHURST,  J.,  and  Lord  Kenyon^  C.  J.,  delivered  opinions  con- 
curring with  BULLER,  J. 

Rules  for  arresting  the  judgment  discharged.^ 


MAHURIN  V.  HARDING. 

Supreme  Ck)urt  of  New  Hampshire,  December,  1853.     28  N.  H.  128. 

Trespass  on  the  Case.  The  declaration  was  as  follows: 
In  a  plea  of  trespass  on  the  case,  for  that  the  said  J.  &  J.  (de- 
fendants) on  &c.,  at  &c.,  being  possessed  of  one  mare,  of  a  dark  brown 
color,  which  mare  was  unsound  and  infected  with  a  bad  and  inveter- 
ate disease,  commonly  called  glanders,  which  rendered  the  said  mare 
good  for  nothing ;  and  the  plaintiff  being  then  and  there  also  possessed 
of  another  mare,  of  a  bay  color,  of  his  own  proper  mare,  of  the  value 
of  $100;  the  defendants,  to  induce  the  plaintiff  to  exchange  with 
them,  did  then  and  there  falsely  and  fraudulently  affirm  to  the  plain- 
tiff that  their,  the  said  defendants',  mare  was  then  well,  good  and 
sound,  with  the  exception  of  "  a  slight  touch  of  the  heaves ;  "  where- 
upon the  plaintiff,  giving  full  credit  to  said  defendants'  said  affirma- 
tion, was  instantly  induced  to  and  did  then  and  there  deliver  his  said 
bay  mare  to  the  defendants  in  exchange  for  said  defendants'  brown 
mare  as  aforesaid;  and  the  defendants  did  then  and  there  deliver 
their  said  brown  mare  to  the  plaintiff  in  exchange  for  the  plaintiff's 
said  bay  mare,  and  also  did  then  and  there  give  to  the  plaintiff  one 
sucking  colt,  of  the  value  of  twenty  dollars,  and  also  gave  to  the 
plaintiff  one  joint  and  several  note  for  thirty  dollars,  and  one  other 
joint  and  several  note  for  five  dollars,  as  boot  between  said  mares. 
Now  the  plaintiff  in  fact  says,  that  the  defendants'  mare  aforesaid  was 
not  at  the  time  of  the  delivery,  exchange  and  affirmation  aforesaid, 
well,  sound  or  good;  but  that  said  mare  was  then  and  there  infected 
with  and  labored  under  a  bad  and  inveterate  disease,  called  glanders, 
as  aforesaid,  which  made  said  mare  utterly  unfit  for  any  service  and 
good  for  nothing,  and  soon  after  died  of  the  said  glanders,  as  afore- 

^  See  Savage  v.  Jackson.  19  Ga.  305,  criticizing  Pasley  v.  Freeman ;  and  see  Mass. 
Rev.  Laws,  ch.  74,  §  4,  requiring  that  representations  of  credit  must  be  in  writing 
to  be  actionable. 


40  MAHURIN   V.    HARDING.  [CHAP.   I. 

said ;  of  all  which  the  said  defendants  were  then  and  there  well  know- 
ing. And  so  the  said  defendants,  by  means  of  their  said  false  affirma- 
tion, have  greatly  injured  and  defrauded  the  plaintiff,  to  his  dam- 
age, &c. 

Upon  the  trial  on  the  general  issue,  the  court  instructed  the  jury 
that  the  plaintiff  must  prove  that  the  affirmation  was  both  false  and 
fraudulent,  that  in  this  State  the  defendant  is  liable  to  arrest  for  a 
fraudulent  affirmation,  by  which  the  plaintiff  has  suffered  damage, 
but  not  for  a  mere  breach  of  contract,  and  that  in  other  respects  the 
distinction  between  tort  and  contract  is  material  and  should  be  re- 
garded, and  therefore  if  they  found  that  the  defendants  stated  as  a 
fact  for  the  plaintiff  to  rely  upon,  that  the  mare  was  sound  (with  the 
exception  named  in  the  writ),  and  found  that  she  was  not  sound;  yet 
if  the  defendants  made  this  statement  in  entire  good  faith,  fully 
believing  it  to  be  true,  they  are  not  liable  in  this  form  of  action ;  but 
if  the  affirmation  was  known,  or  believed  or  suspected  by  them  to  be 
false,  and  the  event  proved  that  it  was  so,  it  should  be  deemed  fraudu- 
lent. 

rrhe  jury  found  a  verdict  for  the  defendants,  which  the  plaintiff 
moved  to  set  aside  because  of  said  instructions. 

Bell,  J.  The  declaration  in  this  case  is  in  trespass  on  the  case  for 
deceit  in  a  sale. 

It  is  said  in  some  of  the  books  that  assumpsit  and  case  for  deceit 
are  in  certain  cases  concurrent  remedies  for  the  same  injuries  in  the 
sale  of  horses;   and  to  some  extent  this  is  true. 

Where  a  seller  is  chargeable  upon  an  implied  warranty  of  title,  or 
where  he  makes  an  express  warranty,  or  makes  such  statements  as  to 
the  quality  of  the  article  he  sells  as  he  intends  the  purchaser  shall 
rely  upon,  and  which  in  law  constitute  a  warranty;  Morrill  v.  Wal- 
lace, 9  N.  H.  Rep.  Ill ;  Whitney  v.  Sutton,  10  Wend.  413 ;  Cook  v. 
Mosely,  13  Wend.  277;  while  at  the  same  time  he  knows  them  to  be 
false,  and  intends  by  them  to  deceive  and  impose  upon  the  purchaser, 
the  buyer  may  seek  his  redress  either  by  action  of  assumpsit  upon  his 
warranty,  or  by  action  of  deceit  for  the  fraud.  Stuart  v.  Wilkins, 
Doug.  21 ;  Williamson  v.  Allison,  2  East,  446 ;  Wallace  v.  Jarman,  2 
Stark.  162;  Wardell  v.  Davis,  13  Johns.  325;  Cravens  v.  Grant,  4 
Mon.  126 ;   2  Stephen's  N.  P.  1285. 

The  warranty  is  none  the  less  a  contract  because  it  is  the  means  by 
which  a  fraud  is  accomplished,  and  the  fraud  is  in  no  way  diminished, 
because  the  seller  has  at  the  same  time  bound  himself  by  a  warranty. 

But  these  remedies,  though  concurrent,  and  though  they  entitle  the 
sufferer  to  the  same  measure  of  redress  in  damages,  are  by  no  means 
identical.  Tiie  distinction  between  tlie  two  classes  of  actions,  as  being 
founded  respectively  on  tort  and  on  contract,  is  nowhere  neglected  or 
disregarded.  There  are  substantial  differences  at  common  law,  and, 
as  remarked  l)y  the  learned  judge  who  tried  this  case,  in  his  charge  to 


CllAl'.    I.j  DECEIT.  41 

the  jury,  the  distinction  is  not  merely  formal,  but  in  the  present  state 
of  our  law  there  is  a  substantial  difference,  which  must  not  be  oveiv 
looked.  In  tort,  here,  there  is  a  remedy  against  the  person,  which 
ordinarily  docs  not  exist  in  actions  on  contracts. 

The  forms  of  declaring  in  these  cases  are  substantially  different. 
The  declaration  in  assumpsit  always  states  a  consideration  and  a 
promise  or  warranty,  and  complains  of  a  breach  of  the  warranty.  1 
Ch.  PI.  99;  Saund."  PI.  and  Ev.  Ill;  Carley  v.  Wilkins,  6  Barb.  S.  C. 
557;  Edick  v.  Crim,  10  Barb.  S.  C.  445.  The  contract  to  warrant, 
of  the  breach  of  which  the  plaintiff  complains,  and  the  entire  consid- 
eration for  it,  is  indispensable  to  be  stated.  Miles  v.  Sheward,  8  East, 
7 ;   Webster  v.  Hodgkins,  5  Foster's  Pep.  128. 

In  this  action  the  allegations  very  often  introduced,  that  the  de- 
fendant intended  to  defraud,  that  he  knew  his  warranty  to  be  false, 
and  that  he  thereby  deceived  and  defrauded  the  plaintiff,  are  im- 
material, and  need  not  be  proved.  The  defendant  is  bound  to  answer 
for  his  false  warranty,  whether  he  knew  it  to  be  false  or  not ;  whether 
he  intended  a  fraud,  or  acted  with  entire  good  faith,  and  fully  be- 
lieved it  to  be  true.  Denison  v.  Palphson,  1  Vent.  Kep.  366 ;  North- 
cote  V.  Maynard,  3  Keb.  807 ;  Anon.  Lofft,  146 ;  Gresham  v.  Postan, 
2  C.  &  P.  540 ;  Bayard  v.  Malcom,  1  Johns.  453 ;  2  Johns.  550 ;  Case 
V.  Boughton,  11  Wend.  107;  Carly  v.  Wilkins,  6  Barb.  S.  C.  557. 

The  declaration  for  deceit  alleges  that  the  defendant  induced  the 
plaintiff  to  purchase  an  article  by  a  warranty  or  by  statements  which 
he  knew  to  be  false,  and  thereby  deceived  and  defrauded  him.  Evert- 
son  V.  Miles,  6  Johns.  138;  Case  v.  Boughton,  11  Wend.  107;  Carley 
V.  Wilkins,  6  Barb.  S.  C.  557;  Edick  v.  Crim,  10  Barb.  S.  C.  445. 
And  this  is  all  that  is  essential  to  be  alleged.  Barney  v.  Dewey,  13 
Johns.  224;  Weeks  v.  Burton,  7  Vt.  Eep.  67.  It  is  not  necessary  to 
make  any  allegation  in  relation  to  the  consideration  or  the  terms  of 
the  contract  of  sale,  unless  they  happen  to  be  connected  with  the 
fraud  alleged,  in  that  case,  though  if  a  party  incautiously  recites  the 
particulars  of  such  a  contract,  he  may  be  compelled  to  prove  them  as 
he  states  them,  and  may  fail  if  any  material  variance  occurs  in  his 
proof.  Weall  v.  King,  12  East,  452 ;  Jones  v.  Cowley,  4  B.  &  C.  446 ; 
Hands  v.  Burton,  9  East,  349 ;  Morris  v.  Littlegoe,  2  Smith,  394 ; 
Blyth  V.  Bampton,  3  Bing.  472 ;  Webster  v.  Hodgkins,  ub.  sup. ;  Hart 
V.  "Dixon,  1  Seh  N.  P.  104;  2  N.  H.  Eep.  291;  Barney  v.  Dewey,  13 
Johns.  224;  Corwin  v.  Davidson,  9  Cow.  22;  Porter  v.  Talcott,  1  Cow. 
359. 

But  the  intention  to  defraud,  the  knowledge  that  his  warranty  or 
his  statements  were  false,  and  the  fact  that  the  plaintiff  was  thereby 
defrauded,  constitute,  in  cases  of  this  kind,  the  very  gist  and  founda- 
tion of  the  action  for  deceit  and  they  must  be  proved,  or  the  action 
must  fail.  Springwell  v.  Allen,  Aleyn,  91 ;  Parkinson  v.  Lee,  2  East, 
313;  Dowling  v.  Mortimer,  2  East,  449  n.;   2  Stark.  Ev.  266;   2  St. 


42  MAHURIN    V.    HARDING.  [CHAP.   T. 

N.  p.  1286;  Dale's  case,  Cro.  El.  44;  Turner  v.  Brent,  12  Mod.  245; 
1  Com.  Dig.  Action  for  Deceit,  A.  8,  A.  11,  E.  4;  Evertsen  v.  Miller, 
6  Johns.  138;  Young  v.  Covell,  8  Johns.  23;  Addington  v.  Allen,  11 
AVend.  375. 

A  seller  may  in  good  faith  make  statements  as  to  the  qualities  of 
the  articles  he  sells,  believing  them  to  be  true,  and  intending  that  the 
jiurchaser  should  rely  upon  them,  either  in  the  form  of  explicit  war- 
ranties, or  of  such  representations  as  in  law  constitute  warranties, 
and  the  purchase  may  be  made  in  reliance  upon  their  truth;  but  the 
seller  is  guilty  of  no  fraud  or  deceit,  for  bad  faith  and  a  design  to 
deceive  are  essential  elements  of  every  fraud,  or  deception ;  ^  and 
though  he  may  be  liable  upon  his  warranty,  yet  no  action,  founded 
on  fraud  or  deceit,  will  lie  in  such  case.  Stone  v.  Denn}'',  4  Met.  151 ; 
Eubber  Co.  v.  Adams,  23  Pick.  256;  Emerson  v.  Brigham,  10  Mass. 
Eep,  197;  Kingsbury  v.  Taylor,  29  Maine  Pep.  508;  Hazard  v.  Ir- 
win, 18  Pick.  95;  Shrewsbury  v.  Blunt,  2  M.  &  G.  475;  Freeman  v. 
Baker,  5  B.  &  Ad.  797 ;   Page  v.  Bent,  2  Met.  371. 

It  is  on  this  principle  that  it  has  in  many  cases  been  made  a  serious 
question,  what  form  of  allegation  was  sufficient  distinctly  to  express 
this  charge.    Chandler  v.  Lopus,  Cro.  Jac.  4;  Medina  v.  Stoughton,  1 
Salk.   210;    s.  c.   1   Ld.  Ray.   593;    Leakins  v.   Chissell,  Sid.   146 
Northcote  v.  Maynard,  3  Keb.  807;  Cross  v.  Garnett,  3  Mod.  261 
Warner  v.  Tallard,  Rolle's  Ah.  91 ;   Elkins  v.  Tresham,  1  Lev.  102 
1  Bac.  Ah.  80;    Bayard  v.  Malcom,  1  Johns.  453;    2  Johns.  550 
Lysney  v.  Selby,  2  Ld.  Ray.  1118;    Harding  v.  Freeman,  Sty.  310 
s.  c.  1  Rolle's  Ab.  91;   1  Com.  Dig.  Action  for  Deceit,  F.  3,  E.  4. 

If  by  the  exercise  of  some  ingenuity  a  declaration  could  be  drawn  in 
such  a  form  that  it  may  seem  doubtful  whether  it  is  designed  to  be 
founded  on  tort  or  on  contract,  and  not  entirely  defective  if  regarded 
as  either  the  one  or  the  other,  yet  it  must  be  held  to  be  founded  either 
in  tort  or  on  contract.  It  cannot  be  considered  as  having  a  double 
aspect  or  character,  or  being  either  the  one  or  the  other,  as  the  exigen- 
cies of  the  ease  may  from  time  to  time  happen  to  require.  To  allow 
it  such  a  double  character  would  be  contrary  to  the  whole  theory  of 
the  common  law,  and  would  make  it  a  perfect  anomaly  in  legal  pro- 
ceedings. 

In  former  times,  the  more  usual  form  of  declaring  in  actions  upon 
a  false  warranty,  was  in  case  for  deceit,  in  which  it  was  more  com- 
monly alleged  that  the  defendant  warrantizando  vendidit  an  article 
as  sound,  well  knowing  that  it  was  not  so,  though  declarations  in 
assumpsit  were  not  uncommon.  2  Inst.  Cler.  227;  Butterfield  v. 
Burroughs,  1  Salk.  211 ;  nor  declarations  in  case  without  warranti- 
zando vendidit.  Firnis  v.  Leicester,  Cro.  Jac.  474;  Roswell  v. 
Vaughan,  Cro.  Jac.  196;  Cross  v.  Garnett,  3  Mod.  261;  Kendrick  v. 
Burgess,  Mo.  126. 

»  See  poBt,  pp-  72-80. 


CHAP.    I.]  DECEIT.  43 

In  Williamson  v.  Allison,  2  East,  445,  in  1802,  in  a  declaration  upon 
a  warrantizando  vendidit,  it  was  expressly  held,  that  the  declaration 
was  in  case  for  deceit,  but  that  by  striking  out  the  averment  of  the 
scienter,  the  action  might  still  be  maintained  in  tort,  and  therefore 
the  scienter  was  not  necessary  to  be  proved.  It  seems  to  have  been 
decided  upon  the  authority  of  a  nisi  prius  ruling  in  a  case,  where  it 
did  not  appear  whether  the  action  was  on  contract  (where  the  ruling 
would  have  been  right,  but  no  authority  for  the  case  in  hand),  or  in 
tort;  and  it  was  conjectured  it  must  have  been  in  tort,  because  such 
was  then  the  more  common  form  of  declaring. 

This  decision  seems  to  have  been  since  followed  in  some  cases  in 
England.  Gresham  v.  Postan,  2  C.  &  P.  540;  and  is  cited  in  most 
of  the  elementary  English  books  on  the  subject. 

It  has  been  followed  in  Vermont  and  some  of  the  other  States,  and 
has  been  made  the  basis  of  a  theory  that  in  actions  for  deceit  in  the 
sale  of  personal  property,  if  an  express  warranty  is  proved,  it  is  not 
necessary  to  prove  the  scienter,  or  any  allegation  that  the  false  war- 
ranty or  affirmation  was  made  with  any  design  to  deceive.^  But  this 
idea  is  not  supported  by  the  decision  in  Williamson  v.  Allison,  which 
is  expressly  limited  to  a  declaration  upon  a  warrantizando  vendidit. 

See  3  Vt.  Eep.  53;    10  Vt.  Rep.  457;    17  Vt.  Eep.  583. 

The  English  case  is  without  authority  here,  and  seems  to  us  entirely 
unsupported  by  any  authority  at  common  law.  And  it  seems  to  us 
entirely  inconsistent  with  the  doctrines  of  the  common  law  to  hold 
that  an  action  for  deceit  can  be  sustained  without  evidence  of  the  in- 
tention to  deceive.  It  would  be  unjustifiable  to  hold  that  a  man  may 
be  imprisoned  on  execution  in  an  action  for  a  tort,  where  a  court 
should  hold  no  proof  need  be  produced  but  of  an  express  contract. 
In  the  case  of  Crooker  v.  Willard  (Sullivan,  July  Term,  1851),^  it 
was  held  that  a  count  alleging  a  deceit  in  a  sale  in  the  same  form  as 
in  Williamson  v.  Allison,  could  not  be  joined  with  one  on  contract, 
so  far,  agreeing  with  that  case.  But  that  decision  is  entirely  irrecon- 
cilable with  the  case  of  Vail  v.  Strong,  10  Vt.  Rep.  457,  that  such 
a  declaration  has  a  double  aspect,  which  makes  it  join  well  with 
assumpsit  or  trover.  And  the  same  view  of  such  a  declaration  was 
taken  in  Webster  v.  Hodgkins,  supra.  With  those  decisions  we 
remain  entirely  satisfied. 

The  present  case  has  a  declaration  framed  upon  a  different  prin- 
ciple. It  could  not  be  supported  as  a  declaration  on  a  warranty,  on 
any  idea  of  rejecting  the  allegations  importing  a  charge  of  fraud, 
if  the  cases  referred  to  were  not  questioned. 

It  sets  forth,  that  the  defendants  being  possessed  of  a  horse,  which 
was  unsound,  and  the  plaintiff  of  another,  of  value,  the  defendants, 
to  induce  the  plaintiff  to  exchange  with  them,  did  falsely  and  fraudu- 

^  Of.   Litchfield  v.  Hutchinson,  post,  p.  67. 

*  Crooker  v.  Willard  is  reported  in  a  foot-note,  28  N.  H.  134. 


44  KAIN    V.   OLD,    ET    ALS.,    EXECUTORS    OF   DODDS.        [CHAP.    I. 

lently  affirm  to  him,  that  their  horse  was  sound,  and  the  plaintiff  giv- 
ing credit  to  their  affirmation  was  induced  to  exchange,  and  did  so, 
whereas  the  defendants'  horse  was  not  sound,  &c.,  which  they  well 
knew,  and  so  the  defendants,  by  their  false  affirmation,  have  greatly 
injured  and  defrauded  the  plaintiff. 

This  is  a  common  form  of  declaring  in  case  for  deceit.  It  has  no 
feature  of  a  declaration  in  assumpsit.  It  contains  no  promise,  nor 
undertaking,  nor  consideration  for  any.  It  complains  of  no  breach 
of  any  contract,  or  warranty.  It  does  not  even  speak  of  any  war- 
ranty. Its  gist  and  substance  is  that  the  defendants,  by  their  false 
and  fraudulent  affirmation,  have  defrauded  the  plaintiff,  and  not  by 
any  breach  of  contract.  Assuredly  no  court  could  hold  that  such  a 
declaration  was  proved  by  any  evidence  which  did  not  establish  the 
fact  of  fraud,  of  an  intention  to  deceive,  carried  into  effect  by  state- 
ments known  to  be  false. 

As,  then,  the  allegation  that  the  defendants  well  knew  their  horse 
to  be  unsound,  was  essential  to  be  inserted  in  the  declaration,  either 
in  direct  terms,  or  in  expressions  of  equivalent  import,  and  necessary 
to  be  proved,  tlie  charge  of  the  court  below  was  entirely  correct,  and 
there  must  be 

Judgment  on  the  verdict. 


KAIN"  V.  OLD,  ET  ALS.,  EXECUTOES  OF  DODDS. 

King's  Bench  of  England,  Hilary  Term,  1824.    2  B.  &  C.  274  (*627). 

Action  of  assumpsit. 

There  was  a  verdict  for  the  plaintiff  subject  to  the  opinion  of  the 
Court  upon  the  following  case.  In  October,  1816,  the  testator, 
Dodds,  being  sole  owner  of  a  ship  called  the  Fortitude,  sold  her  to 
the  plaintiff  for  £1650,  and  signed  and  delivered  to  the  plaintiff, 
Kain,  an  instrument,  of  which  the  following  is  a  copy, 

"  For  sale  or  charter,  one  boom  main  sail,  one  lower  steering  sail, 
one  middle  stay  sail,  and  one  top  gallant  stay  sail.  The  Snow 
Fortitude,  A  1,  British  built,  copper  bolted,  and  new  coppered  in 
1813,  admeasures  per  register  two  hundred  and  seventy-seven  tons, 
is  well  calculated  for  any  trade  where  a  vessel  of  her  dimensions  is 
wanted,  lying  in  the  Surrey  canal.  Inventory  (here  followed  an 
inventory  of  stores,  etc.)  Sold  the  within-mentioned  ship  to  Messrs. 
Kain  and  Son  (thereby  meaning  G.  J.  Kain).  W.  Dodds."  On  the 
28th  of  October,  1816,  the  testator  received  the  said  £1650,  and  duly 
executed  a  bill  of  sale  of  the  said  ship  to  the  said  G.  J.  Kain,  con- 
taining the  usual  covenants,  but  which  did  not  describe  the  Fortitude 
as  co])per  bolted.  On  the  14th  of  Soplombor,  1818,  Kain  having  ex- 
pended a  considerable  sum  of  money  upon  the  Fortitude,  agreed  to 


CHAP.    I.]  DECEIT.  45 

sell  her  to  J.  Shepherd,  according  to  printed  particulars,  substan- 
tially the  same  as  those  already  set  out.  At  the  foot  of  those  par- 
ticulars, G.  J.  Kain  wrote  "  I  agree  to  sell  Mr.  Shepherd  the  Forti- 
tude, with  all  her  stores,  as  per  inventory,  for  the  sum  of  £2300. 
G.  J.  Kain."  The  Fortitude  was  conveyed  by  G.  J.  Kain  to  J. 
Shepherd  by  bill  of  sale,  in  the  same  form  as  that  by  which  she  had 
been  conveyed  by  testator  to  G,  J.  Kain.  In  Hilary  term,  1821,  J. 
Shepherd  commenced  an  action  upon  the  case  against  G.  J.  Kain  in 
the  Court  of  King's  Bench  in  respect  of  the  said  last-mentioned  sale, 
and  declared  upon  a  warranty  that  the  vessel  was  copper  fastened, 
and  there  was  a  count  for  a  deceitful  representation  that  she  was 
copper  fastened.  Upon  the  trial  of  that  action,  the  jury  found  a 
verdict  for  Shepherd,  damages  £500,  which,  together  with  £142  10s. 
taxed  costs,  were  paid  by  Kain  to  Shepherd  before  the  commence- 
ment of  this  action.  Kain's  own  costs  in  that  action  amounted  to 
£140  15s.  6d.,  and  make  together  with  the  former  sums  the  aggre- 
gate sum  of  £783  5s.  6d.  Kain  gave  no  notice  of  the  action  of 
Shepherd  v.  Kain  to  Dodds  or  his  executors.  At  the  time  of  the 
sale  of  the  ship  by  W.  Dodds  to  Kain,  the  ship  was  not  copper  bolted. 

Abbott,  C.  J.  .  .  .  [After  stating  the  facts,  the  learned  Chief 
Justice  proceeded :]  Upon  this  case  the  question  is,  whether  the  plain- 
tiff has  proved  a  promise  according  to  his  declaration.  AVe  think 
he  has  not.  The  first  instrument,  which  contains  a  description  of 
the  ship  as  copper  bolted,  and  an  inventory  of  her  furniture,  and 
concludes  with  the  words,  "  Sold  the  within-mentioned  ship  to  Messrs. 
Kain  and  Son.  W.  Dodds."  cannot  in  our  opinion  be  regarded  as 
an  instrument  of  contract.  It  is  invalid  either  as  a  conveyance  or 
as  an  agreement  to  convey  the  ship,  by  the  register  acts,  because  it 
does  not  contain  a  recital  of  the  certificate  of  registry.  Biddell  v. 
Leader,  1  B.  &  C.  327.  And  it  is  imperfect  as  an  instrument  of 
contract,  because  it  does  not  mention  the  price,  and  this  defect  is 
not  supplied  by  any  fact  appearing  in  the  case;  for  there  is  no  men- 
tion of  any  price  as  agreed  between  the  parties  before  or  at  the  time 
when  Dodds  the  testator  delivered  the  paper  to  the  plaintiff;  and 
the  bill  of  sale  mentions  the  sum  of  £1650  as  the  consideration  of 
the  sale,  but  does  not  mention  any  prior  contract  or  agreement.  We 
do  not,  however,  rely  on  this  imperfection,  the  objection  arising  out 
of  the  register  act  being  decisive  as  to  the  invalidity  of  the  paper. 
The  bill  of  sale  then  is  the  only  instrument  of  contract,  and  this 
does  not  describe  the  ship  as  copper  bolted;  though  it  contains 
covenants  for  the  title  and  for  further  assurance.  The  description 
of  copper  bolted  in  the  paper  can  therefore  be  considered  as  a  repre- 
sentation only,  and  not  as  any  part  of  the  contract.  The  contract 
is  in  writing,  as  every  contract  for  the  sale  of  a  ship  must  be. 

Where  the  whole  matter  passes  in  parol,  all  that  passes  may  some- 
times be  taken  together  as  forming  parcel  of  the  contract,  though 


46  SMITH   V.   HUGHES.  [CHAP.    I. 

not  always,  because  matter  talked  of  at  the  commencement  of  a  bar- 
gain may  be  excluded  by  the  language  used  at  its  termination.  But 
if  the  contract  be  in  the  end  reduced  into  writing,  nothing  which 
is  not  found  in  the  writing  can  be  considered  as  a  part  of  the  con- 
tract. A  matter  antecedent  to  and  dehors  the  writing,  may  in  some 
eases  be  received  in  evidence,  as  showing  the  inducement  to  the  con- 
tract; such  as  a  representation  of  some  particular  quality  or  incident 
to  the  thing  sold.  But  the  buyer  is  not  at  liberty  to  show  such  a 
representation,  unless  he  can  also  show  that  the  seller  by  some  fraud 
prevented  him  from  discovering  a  fault  which  he,  the  seller,  knew 
to  exist.  All  this  is  very  clearly  laid  down  in  the  judgment  delivered 
by  the  late  Lord  Chief  Justice  Gibbs  in  Pickering  v.  Dowson,^  and 
it  is  decisive  of  the  present  case  wherein  the  plaintiff  has  neither 
declared  upon,  nor  proved  fraud  on  the  part  ot  the  defendant's  tes- 
tator, but  has  declared  upon  a  promise  or  contract.  The  postea, 
therefore,  is  to  be  delivered  to  the  defendant. 

Judgment  for  the  defendant. 


SMITH  V.  HUGHES. 

Queen's  Bench  of  England,  June,  1871.     L.  R.  6  Q.  B.  597. 

The  case  is  stated  in  the  opinion. 

CocKBURN,  C.  J.  This  was  an  action  brought  in  the  county  court 
of  Surrey,  upon  a  contract  for  the  sale  of  a  quantity  of  oats  by 
plaintiff  to  defendant,  which  contract  the  defendant  had  refused 
to  complete,  on  the  ground  that  the  contract  had  been  for  the  sale 
and  purchase  of  old  oats,  whereas  the  oats  tendered  by  the  plaintiff 
had  been  oats  of  the  last  crop,  and  therefore  not  in  accordance  with 
the  contract. 

The  plaintiff  was  a  farmer,  the  defendant  a  trainer  of  racehorses. 
And  it  appeared  that  the  plaintiff,  having  some  good  winter  oats 
to  sell,  had  applied  to  the  defendant's  manager  to  know  if  he  wanted 
to  buy  oats,  and  having  received  for  answer  that  he  (the  manager) 
was  always  ready  to  buy  good  oats,  exhibited  to  him  a  sample,  say- 
ing at  the  same  time  that  he  had  forty  or  fifty  quarters  of  the  same 
oats  for  sale,  at  the  price  of  35s.  per  quarter.  The  manager  took  the 
sample,  and  on  the  following  day  wrote  to  say  he  would  take  the 
whole  quantity  at  the  price  of  34s.  a  quarter. 

Thus  far  the  parties  were  agreed;  but  there  was  a  conflict  of  evi- 
dence between  them  as  to  whether  anything  passed  at  the  interview 
between  the  plaintiff  and  defendant's  manager  on  the  subject  of  the 
oats  being  old  oats,  the  defendant  asserting  that  he  had  expressly 
said  that  bo  was  ready  to  buy  old  oats,  and  that  the  plaintiff  had 

1  4  Tiiunt.    779. 


CHAP.   I.]  DECEIT.  47 

replied  that  the  oats  were  old  oats,  while  the  plaintiff  denied  that 
any  reference  had  been  made  to  the  oats  being  old  or  new. 

The  plaintiff  having  sent  in  a  portion  of  the  oats,  the  defendant, 
on  meeting  him  afterwards,  said,  "  Why,  those  were  new  oats  you 
sent  me ; "  to  which  the  plaintiff  having  answered,  "  I  knew  they 
were ;  I  had  none  other,"  the  defendant  replied,  "  I  thought  I  was 
buying  old  oats:  new  oats  are  useless  to  me;  you  must  take  them 
back."     This  the  plaintiff  refused  to  do,  and  brought  this  action. 

It  was  stated  by  the  defendant's  manager  that  trainers  as  a  rule 
always  use  old  oats,  and  that  his  own  practice  was  never  to  buy  new 
oats  if  he  could  get  old. 

But  the  plaintiff  denied  having  known  that  the  defendant  never 
bought  new  oats,  or  that  trainers  did  not  use  them;  and,  on  the 
contrary,  asserted  that  a  trainer  had  recently  offered  him  a  price  for 
new  oats.  Evidence  was  given  for  the  defendant  that  34s.  a  quar- 
ter was  a  very  high  price  for  new  oats,  and  such  as  a  prudent  man 
of  business  would  not  have  given.  On  the  other  hand,  it  appeared 
that  oats  were  at  the  time  very  scarce  and  dear. 

The  learned  judge  of  the  county  court  left  two  questions  to  the 
jury :  first,  whether  the  world  "  old  "  had  been  used  with  reference 
to  the  oats  in  the  conversation  between  the  plaintiff  and  the  de- 
fendant's manager;  secondly,  whether  the  plaintiff  had  believed  that 
the  defendant  believed,  or  was  under  the  impression,  that  he  was 
contracting  for  old  oats;  in  either  of  which  cases  he  directed  the 
jury  to  find  for  the  defendant. 

It  is  to  be  regretted  that  the  jury  were  not  required  to  give 
specific  answers  to  the  questions  so  left  to  them.  For,  it  is  quite 
possible  that  their  verdict  may  have  been  given  for  the  defendant 
on  the  first  ground;  in  which  case  there  could,  I  think,  be  no  doubt 
as  to  the  propriety  of  the  judge's  direction;  whereas  now,  as  it  is 
possible  that  the  verdict  of  the  jury  —  or  at  all  events  of  some  of 
them  —  may  have  proceeded  on  the  second  ground,  we  are  called  upon 
to  consider  and  decide  whether  the  ruling  of  the  learned  judge  with 
reference  to  the  second  question  was  right. 

For  this  purpose  we  must  assume  that  nothing  was  said  on  the 
subject  of  the  defendant's  manager  desiring  to  buy  old  oats,  nor  of 
the  oats  having  been  said  to  be  old;  while,  on  the  other  hand,  we 
must  assume  that  the  defendant's  manager  believed  the  oats  to  be 
old  oats,  and  that  the  plaintiff  was  conscious  of  the  existence  of 
such  belief,  but  did  nothing,  directly  or  indirectly,  to  bring  it  about, 
simply  offering  his  oats  and  exhibiting  his  sample,  remaining  per- 
fectly passive  as  to  what  was  passing  in  the  mind  of  the  other  party. 
The  question  is  whether,  under  such  circumstances,  the  passive  ac- 
quiescence of  the  seller  in  the  self-deception  of  the  l)uyer  will  entitle 
the  latter  to  avoid  the  contract.  I  am  of  the  opinion  that  it  will 
not. 


48  SMITH  V.    HUGHES.  [CHAP.  I. 

The  oats  offered  to  the  defendant's  manager  were  a  specific  parcel, 
of  which  the  sample  submitted  to  him  formed  a  part.  He  kept  the 
sample  for  twenty-four  hours,  and  had,  therefore,  full  opportunity 
of  inspecting  it  and  forming  his  judgment  upon  it.  Acting  on  his 
own  judgment,  he  wrote  to  the  plaintiff,  offering  him  a  price.  Hav- 
ing this  opportunity  of  inspecting  and  judging  of  the  sample,  he  is 
practically  in  the  same  position  as  if  he  had  inspected  the  oats  in 
bulk.  It  cannot  be  said  that,  if  he  had  gone  and  personally  inspected 
the  oats  in  bulk,  and  then,  believing  —  but  without  anything  being 
said  or  done  by  the  seller  to  bring  about  such  a  belief  —  that  the 
oats  were  old,  had  offered  a  price  for  them,  he  would  have  been 
justified  in  repudiating  the  contract,  because  the  seller,  from  the 
known  habits  of  the  buyer,  or  other  circumstances,  had  reason  to 
infer  that  the  buyer  was  ascribing  to  the  oats  a  quality  they  did  not 
possess,  and  did  not  undeceive  him. 

I  take  the  true  rule  to  be,  that  where  a  specific  article  is  offered 
for  sale,  without  express  warranty,  or  without  circumstances  from 
which  the  law  will  imply  a  warranty  —  as  where,  for  instance,  an 
article  is  ordered  for  a  specific  purpose  —  and  the  buyer  has  full 
opportunity  of  inspecting  and  forming  his  own  judgment,  if  he 
chooses  to  act  on  his  own  judgment,  the  rule  caveat  emptor  applies. 
If  he  gets  the  article  he  contracted  to  buy,  and  that  article  corresponds 
with  what  it  was  sold  as,  he  gets  all  he  is  entitled  to,  and  is  bound 
by  the  contract.  Here  the  defendant  agreed  to  buy  a  specific  par- 
eel  of  oats.  The  oats  were  what  they  were  sold  as,  namely,  good 
oats  according  to  the  sample.  The  buyer  persuaded  himself  they 
were  old  oats,  when  the}""  were  not  so;  but  the  seller  neither  said  nor 
did  anything  to  contribute  to  his  deception.  He  has  himself  to 
blame.  The  question  is  not  what  a  man  of  scrupulous  morality  or 
nice  honor  would  do  under  such  circumstances. 

The  case  put  of  the  purchase  of  an  estate,  in  which  there  is  a 
mine  under  the  surface,  but  the  fact  is  unknown  to  the  seller,  is  one 
in  which  a  man  of  tender  conscience  or  high  honor  would  be  un- 
willing to  take  advantage  of  the  ignorance  of  the  seller;  but  there 
can  be  no  doubt  that  the  contract  for  the  sale  of  the  estate  would  be 
binding. 

Mr.  Justice  Story,  in  his  work  on  Contracts  (Vol.  i.  s.  516), 
states  the  law  as  to  concealment  as  follows :  — "  The  general  rule, 
both  of  law  and  equity,  in  respect  to  concealment,  is  that  mere 
silence  with  regard  to  a  material  fact,  which  there  is  no  legal  obli- 
gation to  divulge,  will  not  avoid  a  contract,  although  it  operate  as 
an  injury  to  the  party  from  whom  it  is  concealed."  "  Thus,"  he 
goes  on  to  say  (s.  517),  "although  a  vendor  is  bound  to  employ  no 
artifice  or  disguise  for  the  purpose  of  concealing  defects  in  the 
article  sold,  since  that  would  amount  to  a  positive  fraud  on  the 
vendee;  yet,  under  the  general  doctrine  of  caveat  emptor,  he  is  not. 


CHAP.    I.]  DECEIT.  49 

ordinarily,  bound  to  disclose  every  defect  of  which  he  may  be  cog- 
rizant,  although  his  silence  may  operate  virtually  to  deceive  the 
vendee."  "But,"  he  continues  (s.  518),  "an  improper  concealment 
or  suppression  of  a  material  fact,  which  the  party  concealing  is 
legally  bound  to  disclose,  and  of  which  the  other  party  has  a  legal 
right  to  insist  that  he  shall  be  informed,  is  fraudulent,  and  will 
invalidate  a  contract."  Further,  distinguishing  between  extrinsic  cir- 
cumstances affecting  the  value  of  the  subject-matter  of  a  sale,  and 
the  concealment  of  intrinsic  circumstances  appertaining  to  its  nature, 
character,  and  condition,  he  points  out  (s.  519),  that  with  reference 
to  the  latter,  the  rule  is  "  that  mere  silence  as  to  anything  which  the 
other  party  might  by  proper  diligence  have  discovered,  and  which  is 
open  to  his  examination,  is  not  fraudulent,  unless  a  special  trust  or 
confidence  exist  between  the  parties,  or  be  implied  from  the  circum- 
stances of  the  case."  In  the  doctrine  thus  laid  down  I  entirely 
agree. 

Now,  in  this  case,  there  was  plainly  no  legal  obligation  in  the 
plaintiff  in  the  first  instance  to  state  whether  the  oats  were  new  or 
old.  He  offered  them  for  sale  according  to  the  sample,  as  he  had  a 
perfect  right  to  do,  and  gave  the  buyer  the  fullest  opportunity  of 
inspecting  the  sample,  which,  practically,  was  equivalent  to  an  in- 
spection of  the  oats  themselves.  What,  then,  was  there  to  create 
any  trust  or  confidence  between  the  parties,  so  as  to  make  it  incum- 
bent on  the  plaintiff  to  communicate  the  fact  that  the  oats  were  not, 
as  the  defendant  assumed  them  to  be,  old  oats?  If,  indeed,  the 
buyer,  instead  of  acting  on  his  own  opinion,  had  asked  the  question 
whether  the  oats  were  old  or  new,  or  had  said  anything  which  inti- 
mated his  understanding  that  the  seller  was  selling  the  oats  as  old 
oats,  the  case  would  have  been  wholly  different;  or  even  if  he  had 
said  anything  which  showed  that  he  was  not  acting  on  his  own  in- 
spection and  judgment,  but  assumed  as  the  foundation  of  the  con- 
tract that  the  oats  were  old,  the  silence  of  the  seller,  as  a  means  of 
misleading  him,  might  have  amounted  to  a  fraudulent  concealment, 
such  as  would  have  entitled  the  buyer  to  avoid  the  contract.  Here, 
however,  nothing  of  the  sort  occurs.  The  buyer  in  no  way  refers 
to  the  seller,  but  acts  entirely  on  his  own  judgment. 

The  case  of  Horsfall  v.  Thomas,^  if  that  case  can  be  considered 
good  law,  is  an  authority  in  point.  In  that  case  a  gun  which  had 
been  manufactured  for  a  purchaser,  had,  when  delivered,  a  defect 
in  it,  which  afterwards  caused  it  to  burst;  yet  it  was  held  that,  al- 
though the  manufacturer,  instead  of  making  the  purchaser  acquainted 
with  the  defect,  had  resorted  to  a  contrivance  to  conceal  it,  as  the 
buyer  had  had  an  opportunity  of  inspecting  the  gun,  and  had  ac- 
cepted it  without  doing  so,  and  had  used  it,  it  was  not  competent 
to  him  to  avoid  the  contract  on  the  ground  of  fraud.    The  case  has, 

» 1  H.  &  C.  90. 


50  SMITH    V.   HUGHES.  [CHAP.    I. 

however,  been  questioned,  and  dissenting  altogether  from  the  decision, 
I  notice  it  only  to  say  that  my  opinion  in  tlie  present  case  has  been 
in  no  degree  influenced  by  its  authority. 

In  the  case  before  us  it  must  be  taken  that,  as  the  defendant,  on 
a  portion  of  the  oats  being  delivered,  was  able  by  inspection  to  ascer- 
tain that  they  were  new  oats,  his  manager  might,  by  due  inspection 
of  the  sample,  have  arrived  at  the  same  result.  The  case  is,  there- 
fore, one  of  sale  and  purchase  of  a  specific  article  after  inspection 
by  the  buyer.  Under  these  circumstances  the  rule  caveat  emptor 
clearly  applies;  more  especially  as  this  cannot  be  put  as  a  case  of 
latent  defect,  but  simply  as  one  in  which  the  seller  did  not  make 
known  to  the  buyer  a  circumstance  affecting  the  quality  of  the  thing 
sold.  The  oats  in  question  were  in  no  sense  defective,  on  the  con- 
trary they  were  good  oats,  and  all  that  can  be  said  is  that  they  had 
not  acqiiired  the  quality  which  greater  age  would  have  given  them. 
There  is  not,  so  far  as  I  am  aware,  any  authority  for  the  position 
that  a  vendor  who  submits  the  subject-matter  of  sale  to  the  inspec- 
tion of  the  vendee,  is  bound  to  state  circumstances  which  may  tend 
to  detract  from  the  estimate  which  the  buyer  may  injudiciously  have 
formed  of  its  value.  Even  the  civil  law,  and  the  foreign  law,  founded 
upon  it,  which  require  that  the  seller  shall  answer  for  latent  defects, 
have  never  gone  the  length  of  saying  that,  so  long  as  the  thing 
sold  answers  to  the  description  under  which  it  is  sold,  the  seller  is 
bound  to  disabuse  the  buyer  as  to  any  exaggerated  estimate  of  its 
value. 

It  only  remains  to  deal  with  an  argument  which  was  pressed  upon 
us,  that  the  defendant  in  the  present  case  intended  to  buy  old  oats, 
and  the  plaintiff  to  sell  new,  so  that  the  two  minds  were  not  ad 
idem;  and  that  consequently  there  was  no  contract.  This  argument 
proceeds  on  the  fallacy  of  confounding  what  was  merely  a  motive 
operating  on  the  buyer  to  induce  him  to  buy  with  one  of  the  essential 
conditions  of  the  contract.  Both  parties  were  agreed  as  to  the  sale 
and  purchase  of  this  particular  parcel  of  oats.  The  defendant  believed 
the  oats  to  be  old,  and  was  thus  induced  to  agree  to  buy  them,  but  he 
omitted  to  make  their  age  a  condition  of  the  contract.  All  that  can 
be  said  is,  that  the  two  minds  were  not  ad  idem  as  to  the  age  of  the 
oats;  they  certainly  were  ad  idem  as  to  the  sale  and  purchase  of  them. 
Suppose  a  person  to  buy  a  horse  without  a  warranty,  believing  him 
to  be  sound,  and  the  horse  turns  out  unsound,  could  it  be  contended 
that  it  would  be  open  to  him  to  say  that,  as  he  had  intended  to 
buy  a  sound  horse,  and  the  seller  to  sell  an  unsound  one, "the  con- 
tract was  void,  because  the  seller  must  have  known  from  the  price 
the  buyer  was  willing  to  give,  or  from  his  general  habits  as  a  buyer 
of  horses,  that  he  thought  the  horse  was  sound?  The  cases  are  ex- 
actly parallel. 

The  result  is  that,  in  my  opinion,  the  learned  judge  of  the  county 


CHAP.    I.]  DECEIT.  ,  51 

court  was  wrong  in  leaving  the  second  question  to  the   jury,  and 
that,  consequently,  the  case  must  go  down  to  a  new  trial. 

Blackburn  and  Hannen,  JJ.,  delivered  concurring  opinions. 

Judgment  accordingly. 


KUELLING   V.   LEAN    MANUFACTUEIKG   COMPANY. 

Court  of  Appeals  of  New  York,  November,  1905.  183  N.  Y.  78. 

The  following  statement  of  the  nature  of  the  action  and  of  the 
facts  is  taken  from  the  opinion  of  Bartlett,  J. 

The  plaintiff  is  a  farmer,  residing  in  East  Penfield,  Monroe  County, 
in  this  state;  the  def-endant  is  a  foreign  corporation  organized  under 
the  laws  of  the  state  of  Ohio,  and  engaged  in  the  manufacture  and 
sale  of  farming  implements,  its  manufactory  being  located  at  Mans- 
field, in  that  state. 

A  few  weeks  prior  to  April,  1902,  the  defendant  sold  to  the  firm 
of  Weaver,  Palmer  &  Eichmond,  who  were  engaged  in  the  business 
of  selling  agricultural  implements  in  the  city  of  Eochester,  a  certain 
road  roller,  with  a  tongue  to  which  was  attached  a  team  of  horses 
when  in  use.  A  few  days  after  this  sale  the  purchasers  sold-  the 
roller  to  the  firm  of  Fuller  &  Barnhart,  dealers  in  agricultural  imple- 
ments at  Fairport,  Monroe  County,  in  this  state.  In  April,  1902, 
the  plaintiff  purchased  the  road  roller  of  the  firm  of  Fuller  &  Barn- 
hart,  used  it  a  short  time  in  the  spring  on  his  farm,  stored  it  in  a 
covered  shed  until  about  the  first  day  of  the  following  September, 
when  he  had  occasion  to  use  it  again  in  the  conduct  of  his  ordinary 
farm  work,  and  while  so  engaged  with  two  horses  attached  thereto, 
the  tongue  broke,  precipitating  him  from  a  seat  which  was  attached 
to  the  rear  end  of  the  tongue  immediately  over  the  roller,  causing 
the  horses  to  run  away.  Plaintiff  clung  to  the  reins  for  a  short  dis- 
tance, was  compelled  to  release  his  hold  and  the  roller,  weighing  some 
seven  hundred  pounds,  passed  over  him,  inflicting  severe  injuries. 

This  action  was  brought  by  the  plaintiff  against  the  defendant  as 
the  manufacturer  of  this  roller,  and  is  based  upon  the  allegation 
that  in  constructing  it  the  defendant  "intentionally,  wilfully,  ma- 
liciously, negligently  and  fraudulently"  put  into  it  a  tongue  made 
of  cross-grained  black  or  red  oak  which  was  unfit  for  that  purpose; 
that  the  tongue  had  a  knot  in  it,  and  in  addition  a  large  knothole 
just  in  front  of  the  point  at  which  the  evener  and  whiffletrees  were 
attached;  that  the  defendant  concealed  this  knothole  with  a  plug  of 
soft  wood  nailed  in,  and  then  the  knot,  the  plug,  the  hole,  the  cross- 
grain  of  the  wood  and  the  kind  of  wood  used  were  covered  up  and 
concealed  by  the  defendant  with  putty  and  paint  so  that  the  defects 
could  not  be  seen  by  inspection;  that  the  tongue  was  placed  in  the 


62  KUELLING   V.   LEAN    MANUFACTURING    COMPANY.       [CHAP.    I. 

roller  so  that  the  knot  and  plug  were  on  the  underside;  that  the 
roller  by  reason  of  these  defects  was  dangerous  to  the  life  and  limbs 
of  any  person  who  should  use  it,  and  that  the  defects  aforesaid  made 
the  tongue  so  weak  that  it  broke  as  before  stated  at  the  time  of 
plaintiff's  injury  and  was  the  cause  thereof. 

The  plaintiff  was  nonsuited  and  filed  exceptions  and  a  motion  for 
a  new  trial. 

Vann,  J.  One  who  carelessly  labels  a  deadly  poison  as  a  harm- 
less medicine  and  puts  it  on  the  market  in  that  condition  is  liable 
to  any  person  who  without  notice  of  its  dangerous  character  uses 
the  same  to  his  injury.  Thomas  v.  Winchester,  6  N.  Y.  397.  The 
manufacturer  of  a  machine  not  inherently  dangerous  to  human  life, 
but  with  a  defect  therein  which  he  pointed  out  to  one  who  purchased 
it  for  his  own  use  and  at  his  request  attempted  to  remedy  the  defect 
and  then  painted  it  over,  is  not  liable  to  one  who  was  injured  while 
using  the  same  with  the  consent  of  the  purchaser.  Loop  v.  Litch- 
field, 42  N.  Y.  351. 

The  first  case  is  typical  of  those  which  permit  the  user  of  a  ma- 
chine, appliance  or  article  that  is  inherently  dangerous  to  recover 
damages  from  the  maker  for  injuries  sustained  without  notice,  and 
the  second  of  those  which  deny  relief  when  the  machine  is  not  in- 
herently dangerous  to  human  life. 

We  now  have  a  case  before  us  with  a  new  element,  that  of  deceit 
on  the  part  of  the  manufacturer,  who  intentionally  so  concealed  a 
defect  in  a  machine  not  intrinsically  dangerous  as  to  thereby  make 
it  dangerous  and  without  notice  sold  it  to  one,  who,  as  he  knew, 
intended  to  sell  it  to  any  purchaser  he  could  find.  The  deceit,  as 
the  jury  might  have  found,  consisted  in  the  complete  concealment 
of  a  defect,  not  necessarily  dangerous  if  unconcealed  but  dangerous 
when  concealed,  and  putting  the  implement  in  this  condition  on  the 
market,  without  notice  to  any  one,  with  the  intention  that  it  should 
be  sold  and  used  as  a  safe  implement.  The  natural  result  of  this 
conduct  was  to  injure  whomsoever  might  use  the  implement,  whether 
he  was  the  original  purchaser,  or  any  subsequent  purchaser,  or  one 
who  simply  used  it  with  the  consent  of  the  owner. 

A  manufacturer  has  the  right  to  sell  a  defective  machine,  if  he 
gives  notice  of  the  defect  to  the  purchaser,  who  in  turn  has  the  same 
right.  Neither  has  the  right,  however,  Avith  furtive  intent,  to  com- 
pletely conceal  the  defect  and  sell  the  machine  as  sound  and  safe,  in- 
tending it  to  be  used  as  such  by  any  one  into  whose  possession  it 
might  lawfully  come,  when  the  natural  result  would  be  the  inflic- 
tion of  an  injury  upon  any  person  who  used  it.  By  giving  currency 
to  the  implement  as  safe,  with  the  intent  to  deceive  not  only  the 
purchaser  l)ut  any  user,  and  yet  so  covering  up  the  defect  as  to 
entirely  conceal  it,  the  defendant  was  guilty  of  an  actionable  wrong, 
as  tlie  jury  might  have   found.      While  the   machine   was  not   in- 


CHAP.    I.]  DECEIT.  53 

herently  dangerous,  that  fact  is  not  controlling,  for  the  danger  was 
in  the  concealed  defect  in  an  implement  sold  as  sound,  and  which  not 
only  appeared  to  be  sound,  but  the  maker  caused  it  to  so  appear  with 
intent  to  deceive.  It  would  be  illogical  to  hold  the  maker  of  a  poison- 
ous medicine,  who  negligently  but  unintentionally  labeled  it  as  an 
innocent  remedy  and  sold  it,  liable  to  any  one  who  used  it  without 
notice  of  its  character,  but  not  to  hold  him  liable  if  he  intentionally 
created  a  danger  in  a  machine  apparently  safe,  which  might -be  as 
fatal  as  poison,  and,  after  concealing  it  in  such  a  way  as  to  pre- 
vent detection,  put  it  on  the  market.  While  the  danger  in  the  one 
case  is  not  so  great  as  in  the  other,  still  if  the  natural  result  would 
cause  bodily  harm  to  a  human  being,  that  regard  for  the  safety  of 
life  and  limb  which  the  common  law  is  so  careful  to  shield,  should 
hold  the  wrongdoer  liable  in  both.  A  land  roller  is  an  implement 
not  ordinarily  dangerous,  but  one  with  a  defective  tongue,  when  the 
defect  is  thoroughly  concealed  for  the  purpose  of  making  a  better 
sale,  may  turn  out  to  be  as  dangerous  as  a  cartridge  loaded  with 
dynamite  instead  of  gimpowder.  Liability  in  this  case  rests  on  the 
simple  extension  of  the  well-established  principle  that  the  maker  of 
an  article  inherently  dangerous  but  apparently  safe,  who  puts  it  on 
the  market  without  notice,  is  liable  to  one  injured  while  using  it, 
to  the  maker  of  an  article,  not  inherently  dangerous,  who  made  it 
dangerous  by  his  own  act  but  so  concealed  the  danger  that  it  could 
not  be  discovered  and  put  it  on  the  market  to  be  sold  and  used  as 
safe.  The  extension  is  logical  and  consistent  with  the  authorities, 
for  if  the  implement  is  not  inherently  dangerous,  but  the  use  thereof 
is  made  dangerous  by  a  defect  wrongfully  concealed,  the  result  is  the 
same  and  the  motive  worse.     I  concur  for  reversal. 

CuLLEN,  Ch.  J.,  Haight  and  Werner,  JJ.,  concur,  and  Gray,  J., 
concurs  with  Bartlett,  J.,  only ;   O'Brien,  J.,  absent. 

Judgment  reversed  and  new  trial  ordered. 


SMITH   V.   LAND    AND   HOUSE   COEPOEATION. 

Court  of  Appeal  of  England,  1884.    28  Ch.  D.  7. 

Appeal  from  a  judgment  by  Mr.  Justice  Denman  in  favor  of  the 
defendants.  The  action  was  for  specific  performance  of  a  contract 
of  sale  of  a  freehold  hotel  in  Walton-on-the-Naze,  at  first  offered  for 
sale  at  auction  by  the  plaintiffs,  with  printed  particulars  set  out  by 
the  auctioneer,  but,  no  sale  being  then  effected,  directly  afterwards 
contracted  for  at  private  sale  by  the  contract  in  suit,  under  circum- 
stances stated  below  by  Lord  Justice  Baggallay. 


54  SMITH   V.   LAND   AND   HOUSE    CORPORATION.  [CHAP.    I. 

The  defendants,  on  learning  that  the  property  was  for  sale,  sent 
their  secretary  to  see  the  property  and  report.  He  visited  the  place 
and  reported  as  follows :  "  The  hotel  has  been  built  over  forty  years, 
and  up  to  a  recent  period  enjoyed  a  high  reputation  as  a  respectable 
and  thriving  hotel.  Mr.  Fleck,  the  landlord,  from  the  amount  of 
business  he  is  now  doing,  can  scarcely  pay  the  amount  of  rent  with 
rates  and  taxes.  It  seems  to  be  a  mystery  in  the  town  itself  how 
Mr.  Fleck,  with  his  eyes  open,  could  have  been  induced  to  take  the 
hotel  at  the  present  rental.  The  only  thing  that  I  can  see  that  can 
be  done  with  the  hotel  to  make  it  pay  as  an  investment  would  be 
to  make  the  small  theatre  into  a  kind  of  music-hall,  and  to  convert 
the  billiard-room  into  a  kind  of  casino.  The  town  itself  seems  to 
be  in  the  very  last  stage  of  decay,  from  beginning  to  end."  This 
report  was  read  at  a  meeting  of  a  committee  of  the  defendants,  pre- 
sided over  by  Mr.  Alderman  Knight,  which  authorized  the  purchase 
of  the  property  at  a  sum  larger  than  was,  in  fact,  paid. 

Bagallat,  L.  J.  On  the  4th  of  May,  1882,  the  plaintiffs  entered 
into  a  contract  with  the  defendants  for  the  sale  to  them  of  certain 
property  described  in  particulars  of  sale.  The  property  had  been 
offered  for  sale  by  auction,  but  no  sale  was  effected,  and,  immediately 
afterwards,  this  contract  was  entered  into.  The  purchasers  declined 
to  complete,  saying  that  they  had  been  induced  by  misrepresentation 
to  enter  into  the  contract.  Early  in  October,  1882,  this  action  was 
commenced  by  the  vendors  for  specific  performance.  It  was  met  by 
a  statement  of  defence,  accompanied  by  a  counter-claim  for  rescis- 
sion of  the  contract  or  compensation.  The  foundation  of  the  counter- 
claim is  that  the  property  was  first  described,  in  the  particulars,  as 
held  by  Fleck,  "  a  very  desirable  tenant,"  and  then  again  as  "  let  to 
Mr.  F.  Fleck  (a  most  desirable  tenant)  at  a  rental  of  £400  per  an- 
num, for  an  unexpired  term  of  twenty-seven  and  a  half  years,  thus 
offering  a  first-class  investment."  It  is  alleged  that  this  was  a  false 
representation,  for  tliat  it  was  not  true  that  Fleck  was  a  "  very  de- 
sirable "  or  a  "  most  desirable  "  tenant.  The  vendors  went  into  receipt 
of  the  rents  in  January,  1882.  We  have  no  evidence  as  to  the  receipt 
of  rent  which  accrued  before  Lady  Day,  1882,  but  as  to  the  quarter's 
rent  which  accrued  on  that  day  it  is  in  evidence  that  it  was  not  paid 
at  once;  that  a  distress  was  threatened  but  not  put  in,  and  that  the 
tenant  paid  £30  on  the  6th  of  May,  £40  on  the  13th  of  June,  and  the 
balance  of  £30  some  time  before  August,  but  at  what  precise  time 
it  does  not  appear.  At  the  date  of  the  auction,  on  the  4th  of  August, 
the  midsummer  rent  had  been  applied  for,  but  no  part  of  it  had  been 
paid.  Under  this  state  of  things  the  representation  in  question  was 
made.  It  is  said  that  these  are  words  of  course,  put  in  by  the 
auctioneer;  but  I  hold  it  to  be  the  duty  of  a  vendor  to  see  that  the 
property  is  not  untruly  described,  and  I  cannot  hold  him  to  be  ex- 
cused because  a  description  which  the  property  will  not  bear  has  been 


CHAP.    I.]  DECEIT.  55 

inserted  by  the  auctioneer  without  his  instructions.  Nor  can  the  auc- 
tioneer excuse  himself  for  inserting  a  false  representation  by  saying 
that  he  did  not  know  it  to  be  untrue.  I  think  that  Mr.  Justice 
Denman  came  to  a  correct  conclusion  as  to  there  having  been  a  ma- 
terial misrepresentation,  for  the  vendors  must  have  known  perfectly 
well  that  the  tenant  did  not  pay  his  rent  properly,  and  they,  therefore, 
were  not  justified  in  describing  him  as  a  very  desirable  tenant. 

We  have,  then,  to  consider  whether  the  representation  materially 
influenced  the  defendants  in  coming  to  a  conclusion  to  bid  for  the 
property.  The  evidence  on  this  head  is  all  one  way.  This  evidence  * 
is  uncontradicted.  It  is  true  that  in  a  case  of  this  kind  it  would  be 
very  difficult  to  find  any  person  who  could  contradict  the  evidence, 
and  reliance  was  placed  on  the  secretary's  report.  I  think  that  the 
expressions  in  this  report  as  to  Fleck,  from  the  amount  of  business 
he  was  doing,  being  hardly  able  to  pay  the  rent,  only  mean  that, 
according  to  the  amount  of  business  at  present  going  on,  it  was  diffi- 
cult to  see  how  Fleck  could  pay  his  rent  and  taxes  out  of  the  profits, 
and  that  these  expressions  do  not  at  all  tend  to  show  that  he  was  not 
a  desirable  tenant,  for  he  might  have  means  which  would  enable  him 
to  go  on  paying  the  rent  till  the  business  improved.  Then  Alderman 
Knight  states  most  positively  that,  having  regard  to  the  surroundings, 
he  should  not  have  purchased  but  for  the  representation  that  Fleck 
was  a  very  desirable  tenant.  It  must  then,  in  my  opinion,  be  con- 
sidered that  the  representation  was  relied  on.  Now,  a  man  who  paid 
his  rent  so  irregularly  could  not  properly  be  represented  as  a  desirable 
tenant. 

After  the  report  had  been  considered  by  the  directors,  the  secre- 
tary was  authorized  to  attend  at  the  auction  and  bid  up  to  £5000. 
The  secretary,  no  doubt,  saw  that  the  biddings  were  going  in  such  a 
way  that  he  should  have  a  chance  of  getting  a  better  bargain  by  private 
contract.  He  did  not  bid,  but  immediately  after  the  auction,  the 
property  not  having  been  sold,  he  agreed  to  purchase  for  £4700. 
Some  observations  were  made  on  a  conversation  alleged  to  have  taken 
place  between  the  secretary  and  the  auctioneer,  tending  to  show  that 
the  former  knew  something  to  Fleck's  disadvantage.  But  the  secre- 
tary, on  this  occasion,  was  an  agent  for  another  purpose;  being  di- 
rected to  buy  the  property  if  he  could  get  it  for  a  sum  not  exceeding 
£5000,  it  was  no  part  of  his  business  to  regulate  his  business  by  what 
he  learned  about  the  tenant.  What  he  may  have  heard  or  said  on  that 
occasion,  when  he  was  only  sent  as  an  agent  for  the  purpose  of  buying 
on  the  best  terms  he  could  get,  not  exceeding  £5000,  cannot  be  evi- 
dence against  the  directors. 

I  need  not  say  much  as  to  the  cases.    In  Scott  v.  Hanson,  1  Sim. 

1  The  evidence  of  Alderman  Knight,  that  the  entire  board  of  directors  of  the 
company,  of  which  he  was  chairman,  trusted  in  the  statement  in  the  particulars 
that  Fleck  was  a  "  very  desirable  tenant,"  when  in  fact  he  was  at  the  time,  but 
without  the  knowledge  of  the  defendants,  insolvent. 


56  SMITH    V.    LAND   AND    HOUSE    CORPORATION.  [CHAP.    I. 

13 ;  1  Euss.  &  M.  128,  and  Trower  v.  Newcome,  3  Mer.  704,  the  ques- 
tion was  whether  there  was  any  misrepresentation  or  not. 

In  Trower  v.  Newcome  a  living  was  described  as  likely  to  become 
vacant  soon,  and  a  statement  was  made  orally  that  it  would  become 
vacant  on  the  death  of  a  person  aged  eighty-two.  This  did  not 
amount  to  a  representation  that  the  incumbent's  age  was  eighty-two. 
Eedgrave  v.  Hurd,  20  Ch.  D.  1,  is  in  favor  of  the  purchasers.  On  the 
facts  as  found  in  the  present  case,  I  think  that  Mr,  Justice  Denman 
came  to  a  right  conclusion. 

BowEN,  L.  J.  I  am  of  the  same  opinion.  The  action  is  by  vendors 
for  specific  performance,  and  the  purchasers  allege  that  there  is  in 
the  particulars  a  misrepresentation  which  disentitles  the  plaintiffs 
to  specific  performance.  To  sustain  this  defence  the  defendants  must 
prove  that  there  was  a  material  misrepresentation,  and  that  they 
entered  into  the  contract  on  the  faith  of  the  representation. 

Was  there,  then,  a  misrepresentation  of  a  specific  fact  ?  This  partly 
depends  on  the  question  whether,  on  the  construction  of  the  particu- 
lars, what  they  say  as  to  Fleck  is  a  representation  of  a  specific  fact, 
a  question  which  the  Court  of  Appeal  has  the  same  means  of  deciding 
as  the  judge  in  the  court  below.  Whether  the  purchasers  relied  upon 
it  is  a  question  of  fact  which  the  judge  of  the  court  below  had  better 
means  of  deciding  than  we  have,  for  he  saw  and  heard  the  witnesses. 

In  considering  whether  there  was  a  misrepresentation  I  will  first 
deal  with  the  argument  that  the  particulars  only  contain  a  statement 
of  opinion  about  a  tenant.  It  is  material  to  observe  that  it  is  often 
fallaciously  assumed  that  a  statement  of  opinion  cannot  involve  the 
statement  of  a  fact.  In  a  case  where  the  facts  are  equally  known 
to  both  parties,  what  one  of  them  says  to  the  other  is  frequently 
nothing  but  an  expression  of  opinion.  The  statement  of  such  opinion 
is  in  a  sense,  then,  a  statement  of  a  fact,  about  the  condition  of  the 
man's  own  mind,  but  only  of  an  irrelevant  fact,  for  it  is  of  no  conse- 
quence what  the  opinion  is.  But  if  the  facts  are  not  equally  known 
to  both  sides,  then  a  statement  of  opinion  by  the  one  who  knows 
the  facts  best,  involves,  very  often,  a  statement  of  a  material  fact, 
for  he  impliedly  states  that  he  knows  facts  which  justify  his  opin- 
ion. 

Now,  a  landlord  knows  the  relations  between  himself  and  his  ten- 
ant; other  persons  either  do  not  know  them  at  all,  or  do  not  know 
them  equally  well;  and  if  the  landlord  says  that  he  considers  that 
the  relations  between  himself  and  his  tenant  are  satisfactory,  he  really 
avers  that  the  facts  peculiarly  within  his  knowledge  are  such  as  to 
render  that  opinion  reasonable.  Now,  are  the  statements  here  state- 
ments which  involve  such  a  representation  of  material  facts?  They 
are  statements  on  a  subject  as  to  which,  prima  facie,  the  vendors 
know  everything,  and  the  purchasers  nothing.  The  vendors  state  that 
the  property  is  let  to  a  most  desirable  tenant :   what  does  that  mean  ? 


CHAP.    I.]  DECEIT.  57 

I  agree  that  it  is  not  a  guaranty  that  the  tenant  will  go  on  paying 
his  rent,  but  it  is  to  my  mind  a  guaranty  of  a  different  sort,  and 
amounts,  at  least,  to  an  assertion  that  nothing  has  occurred  in  the 
relations  between  the  landlord  and  the  tenant  which  can  be  considered 
to  make  the  tenant  an  unsatisfactory  one.  That  is  an  assertion  of 
a  specific  fact. 

Was  it  a  true  assertion?  Having  regard  to  what  took  place  between 
Lady  Day  and  Midsummer,  I  think  that  it  was  not.  On  the  25th  of 
March,  a  quarter's  rent  became  due.  On  the  1st  of  May  it  was 
wholly  unpaid,  and  a  distress  was  threatened.  The  tenant  wrote  to 
ask  for  time.  The  plaintiffs  replied  that  the  rent  could  not  be  al- 
lowed to  remain  over  Whitsuntide.  The  tenant  paid  on  the  6th  of 
May  £30,  on  the  13th  of  June  £40,  and  the  remaining  £30  shortly 
before  the  auction.  Now,  could  it,  at  the  time  of  the  auction,  be  said 
that  nothing  had  occurred  to  make  Fleck  an  undesirable  ten- 
ant? In  my  opinion,  a  tenant  who  had  paid  his  last  quarter's  rent 
by  driblets  under  pressure  must  be  regarded  as  an  undesirable 
tenant. 

Treating  this,  then,  as  a  misrepresentation,  did  it  induce  the  pur- 
chasers to  buy?  It  appears  to  me  that  it  is  in  every  case  a  question 
of  fact  whether  a  person  is  induced  to  buy  by  a  particular  representa- 
tion. We  may  obtain  valuable  hints  from  reported  cases,  but  none 
of  the  cases  appear  to  me  to  impugn  the  proposition  that  the  question 
is  one  of  fact,  to  be  decided  on  the  circumstances  of  each  particular 
case.  A  representation  in  the  particulars  must  be  taken  as  made  for 
the  purpose  of  influencing  the  purchaser's  mind.  Then,  did  the  pur- 
chaser rely  upon  it?  I  cannot  quite  agree  with  the  remark  of  the 
late  Master  of  the  Eolls  in  Redgrave  v.  Hurd,  20  Ch.  D.  1,  21,  that  if 
a  material  representation  calculated  to  induce  a  person  to  enter  into 
a  contract  is  made  to  him,  it  is  an  inference  of  law  that  he  was  in- 
duced by  the  representation  to  enter  into  it;  and  I  think  that  prob- 
ably his  Lordship  hardly  intended  to  go  so  far  as  that,  though  there 
may  be  strong  reason  for  drawing  such  an  inference  as  an  inference 
of  fact.  But  here  we  are  not  left  to  inference.  The  chairman  of  the 
company  ^  was  called,  and  swore  in  the  most  distinct  and  positive 
way  that  it  did  influence  him,  and  that  but  for  the  representation, 
he  would  not  have  purchased.  The  judge  was  at  liberty  to  disbelieve 
him,  but  I  see  no  reason  why  he  was  bound  so  to  do.  His  evidence 
was  not  shaken  on  cross-examination,  and  the  judge  believed  him. 
He  uses  the  very  argument  that  the  property  had  been  examined  on 
behalf  of  the  company  as  strengthening  the  statement  that  the  com- 
pany relied  on  the  representation,  for  he  says  the  report  of  the  secre- 
tary was  so  unfavorable  that  but  for  the  representation  as  to  the  ten- 
ant they  would  not  have  bought.  Redgrave  v.  Hurd,  20  Ch.  D.  1, 
shows  that  a  person  who  has  made  a  misrepresentation  cannot  escape 

*  Alderman  Knight. 


58  BISHOP   V.    SMALL.  [CHAP.    I. 

by  saying,  "  You  had  means  of  information,  and  if  you  had  been  care- 
ful you  would  not  have  been  misled." 

It  was  argued  that  Alderman  Knight  would  not  have  relied  on  the 
representation  had  he  not  put  on  it  a  construction  that  it  will  not 
bear;  viz.,  that  it  was  a  guaranty  that  the  tenant  would  go  on  pay- 
ing the  rent.  I  do  not  think  that  he  understood  it  so.  1  think  he 
merely  understood  it  as  a  representation  that,  so  far  as  the  vendors 
knew,  the  tenant  was  likely  to  go  on  paying  the  rent  for  the  rest  of 
the  term.  If  we  had  merely  to  deal  with  the  evidence  of  Alderman 
Knight  on  paper,  I  should  not  feel  quite  satisfied  that  we  ought  to 
treat  it  as  satisfactory;  but  as  the  judge  who  heard  and  saw  him  was 
satisfied,  I  think  that  we  ought  not  to  differ  from  his  conclusions. 

Fry,  L.  J.,  delivered  a  short  concurring  opinion. 


BISHOP   V.    SMALL. 

Supreme  Court  of  Maine,  1874.     63  Maine,  12. 

Case  for  deceit  on  tlie  sale  of  the  right  to  make  and  vend  a  patented 
crank  churn  for  the  States  of  Kentucky  and  West  Virginia,  for  which 
plaintiff  and  one  Eaton  paid  the  defendant  $7000,  being  induced  to 
do  so  by  certain  false  and  fraudulent  representations  made  to  them 
by  Small,  which  are  sufficiently  stated  in  the  opinion.  The  plaintiff 
offered  to  prove  that  he  bought  this  right  relying  upon  these  state- 
ments, that  other  similar  ones  were  made  by  the  defendant,  and  that 
they  were  false;  that  he  spent  six  weeks  in  Kentucky,  in  a  vain 
effort  to  introduce  the  churn  into  use;  that  the  churn  and  alleged 
invention  were  of  no  value,  and  that  these  representations  were  made 
by  the  defendant  with  intent  to  defraud  and  deceive  the  plaintiff; 
but  the  judge  ruled  that  there  were  not  sufficient  allegations  in  the 
writ,  if  all  proved,  to  sustain  the  action,  and  ordered  a  nonsuit.  The 
plaintiff  excepted. 

Peters,  J.  The  plaintiff  seeks  to  recover  damages  for  a  deceit  in 
the  sale  of  a  patent  right.  The  representations  of  the  defendant, 
relied  upon,  were  substantially  these:  —  that  the  patent  right  was 
a  "good  thing;"  "of  great  utility  and  benefit,  and  popular;"  that 
"  it  was  in  great  demand,  and  that  the  defendant  had  been  offered 
$40,000  for  it,  for  the  territory  of  Pennsylvania ; "  that  he  had  "  sold 
one-quarter  of  the  right  for  the  territory  of  Pennsylvania,  for 
$4,000;"  that  "it  had  been  rapidly  sold,  and  he  had  sold  interests 
in  it  as  fast  as  he  could  travel  on  the  road ; "  that  "  he  had  himself 
bought  additional  interests  in  it  at  great  prices,  and  that  he  and 
others  had  made  large  sums  of  money  in  making  sales  of  it;"  that 
"  the  plaintiff  could  sell  it  upon  the  territory  for  which  he  was  to 


CHAP.   I.]  DECEIT.  59 

have  it,  and,  if  he  did  not  succeed,  that  he  would  go  and  sell  it  for 
him,  and  would  assure  him  that  he  would  make  a  large  amount  from 
the  transaction."  The  plaintiff  avers  that  the  right  was  of  no  value; 
in  no  demand;  and  that  it  could  not  be  sold,  and  that  the  defendant 
knew  it  to  be  so.  He  does  not  contend  that  the  article  has  no  efficiency 
as  a  churn ;  but  contends  that  it  has  no  superior  advantages  in  those 
respects  for  which  it  was  patented. 

We  are  of  the  opinion  that  these  representations  are  not  actionable. 
When  analyzed,  they  seem  to  consist  of  the  opinion  of  the  defendant 
as  to  the  value  of  the  property  sold;  or  relate  to  the  price  that  was 
given  for  it;  or  which  had  been  offered  for  it;  or  prices  at  which 
it  had  been  sold;  or  to  the  future  profits  that  could  be  made  out  of 
it.  All  the  representations  complained  of  were  merely  loose,  exag- 
gerated, vague  and  indefinite  recommendations  which  a  vendor  is 
likely  to  make  of  property  of  this  description,  which  he  is  desirous 
to  sell,  and  so  plainly  so,  that  a  person  in  the  use  of  ordinary  care 
should  not  be  deceived  by  them.  Caveat  emptor  applies.  It  is  not 
so  much  that  such  representations  are  not  enough  to  amount  to  fraud 
and  imposition,  but  that  they  are,  so  to  speak,  too  much  for  that  pur- 
pose. Most  of  them  are  too  preposterous  to  believe.  None  of  them 
are  representations  of  facts,  affecting  the  quality  of  the  article  sold, 
known  to  the  vendor,  but  unknown  to  the  vendee,  and  such  as  a 
vendee  using  common  care  would  be  deceived  by.  They  are  only 
"  dealer's  talk."  This  is  the  well  settled  doctrine  in  this  State  and 
Massachusetts.  Long  v.  Woodman,  58  Maine,  49 ;  Holbrook  v. 
Conner,  60  Maine,  578.  And  see  Massachusetts  decisions  cited  and 
approved  in  these  cases.  So  far  as  a  contrary  doctrine  is  held  in  the 
case  of  Ives  v.  Carter.  24  Conn.  403,  it  is  not  in  accord  with  the  cases 
cited.  The  late  case  of  Somers  v.  Richards,  4G  Vermont,  170,  sus- 
tains the  plaintiff's  propositions  in  the  case  at  bar,  but  it  is  clearly 
at  variance  with  our  own  decisions.  We  think  the  rule  adopted  by  us 
is  the  more  reasonable  and  logical  one.  Any  other  must  be  uncertain 
and  indefinite.  The  case  of  Rowland  v.  Cain,  3  Allen,  261,  cited  by 
the  plaintiff,  does  not  militate  against  the  principle  of  the  cases  relied 
upon  in  support  of  our  conclusion  in  this  case,  where  the  defendant 
falsely  represented  the  qualities  of  a  horse,  when  the  plaintiff  had  no 
opportunity  to  ascertain  the  falsehood  by  any  examination.  That  was 
not  an  expression  of  opinion,  but  of  fact. 

The  statement  of  the  defendant  in  this  case,  not  alleged  in  the  writ, 
but  testified  to,  that  he  had  "  churned  butter  from  the  butter  milk  that 
had  been  left  by  another  churn,"  if  it  amounts  to  an  actionable  repre- 
sentation, or  has  anv  important  bearing  upon  the  rights  of  the  par- 
ties, cannot  be  considered  here.  The  declaration  sets  out  specifically 
the  fraudulent  representations  relied  on,  and  this  is  not  one  of  them. 

Walton,  Dickeeson,  Barrows  and  Virgin,  JJ.,  concurred. 

Exceptions  overruled. 


60  PEEK   V.   DEREY.  [CHAP.    I. 

PEEK   V.    DEERY. 

House  of  Lords  of  England,  July,  1888.     14  A.  C.  337. 

Appeal  from  a  decision  of  the  Court  of  Appeal.  The  facts  are  set 
out  at  length  in  the  report  of  the  decisions  below,  37  Ch.  D.  541,  For 
the  present  report  the  following  summary  will  suffice :  — 

By  a  special  Act  (45  &  46  Vict.  c.  clix.)  the  Plymouth,  Devonport 
and  District  Tramways  Company  was  authorized  to  make  certain 
tramways. 

By  sect,  35  the  carriages  used  on  the  tramways  might  be  moved  by 
animal  power  and,  with  the  consent  of  the  Board  of  Trade,  by  steam 
or  any  mechanical  power  for  fixed  periods  and  subject  to  the  regula- 
tions of  the  Board. 

By  sect.  34  of  the  Tramways  Act  1870  (33  &  34  Vict.  c.  78),  which 
section  was  incorporated  in  the  special  Act,  "  all  carriages  used  on 
any  tramway  shall  be  moved  by  the  power  prescribed  by  the  special 
Act,  and  where  no  such  power  is  prescribed,  by  animal  power 
only." 

In  February,  1883,  the  appellants  as  directors  of  the  company  is- 
sued a  prospectus  containing  the  following  paragraph :  — 

"  One  great  feature  of  this  undertaking,  to  which  considerable 
importance  should  be  attached,  is,  that  by  the  special  Act  of  Parlia- 
ment obtained,  the  company  has  the  right  to  use  steam  or  mechanical 
motive  power,  instead  of  horses,  and  it  is  fully  expected  that  by  means 
of  this  a  considerable  saving  will  result  in  the  working  expenses  of 
the  line  as  compared  with  other  tramways  worked  by  horses." 

Soon  after  the  issue  of  the  prospectus  the  respondent,  relying,  as 
he  alleged,  upon  the  representations  in  this  paragraph  and  believing 
that  the  company  had  an  absolute  right  to  use  steam  and  other  me- 
chanical power,  applied  for  and  obtained  shares  in  the  company. 

The  company  proceeded  to  make  tramways,  but  the  Board  of  Trade 
refused  to  consent  to  the  use  of  steam  or  mechanical  power  except 
on  certain  portions  of  the  tramways. 

In  the  result  the  company  was  wound  up,  and  the  respondent  in 
1885  brought  an  action  of  deceit  against  the  appellants  claiming 
damages  for  tbc  fraudulent  misrepresentations  of  the  defendants 
whereby  the  plaintiff  was  induced  to  take  shares  in  the  company. 

At  the  trial  before  Stirling,  J.,  the  plaintiff  and  defendants  were 
called  as  witnesses.  The  effect  given  to  their  evidence  in  this  House 
will  appear  from  the  judgments  of  noble  and  learned  Lords. 

Stirling,  J.,  rlismissed  the  action;  but  that  decision  was  reversed 
by  the  Court  of  Appeal  (Cotton,  L.  J.,  Sir  J.  Hannen,  and  Tx)pes, 
L.  J.),  who  held  that  the  defendants  were  liable  to  make  good  to  the 
plaintiff  the  loss  sustained  by  his  taking  the  shares,  and  ordered  an 


CHAP.   I.]  DECEIT.  61 

inquiry,  37  Ch.  D.  541,  591.  Against  this  decision  the  defendants 
appealed. 

Loud  Herschell:  — 

My  Lords,  in  the  statement  of  claim  in  this  action  the  respondent, 
who  is  the  plaintiff,  alleges  that  the  appellants  made  in  a  prospectus, 
issued  by  them  certain  statements  which  were  untrue,  that  they  well 
knew  that  the  facts  were  not  as  stated  in  the  prospectus,  and  made  the 
representations  fraudulently,  and  with  the  view  to  induce  the  plain- 
tiff to  take  shares  in  the  company. 

"  This  action  is  one  which  is  commonly  called  an  action  of  deceit, 
a  mere  common  law  action."  This  is  the  description  of  it  given  by 
Cotton,  L.  J.,  in  delivering  judgment.  I  think  it  important  that  it 
should  be  borne  in  mind  that  such  an  action  differs  essentially  from 
one  brought  to  obtain  rescission  of  a  contract  on  the  ground  of  mis- 
representation of  a  material  fact.  The  principles  which  govern  the 
two  actions  differ  widely.  Where  rescission  is  claimed  it  is  only 
necessary  to  prove  that  there  was  misrepresentation;  then,  however 
honestly  it  may  have  been  made,  however  free  from  blame  the  person 
who  made  it,  the  contract,  having  been  obtained  by  misrepresentation, 
cannot  stand.  In  an  action  of  deceit,  on  the  contrary,  it  is  not  enough 
to  establish  misrepresentation  alone;  it  is  conceded  on  all  hands  that 
something  more  must  be  proved  to  cast  liability  upon  the  defendant, 
though  it  has  been  a  matter  of  controversy  what  additional  elements 
are  requisite.  I  lay  stress  upon  this  because  observations  made  by 
learned  judges  in  actions  for  rescission  have  been  cited  and  much 
relied  upon  at  the  bar  by  counsel  for  the  respondent.  Care  must 
obviously  be  observed  in  applying  the  language  used  in  relation  to 
such  actions  to  an  action  of  deceit.  Even  if  the  scope  of  the  language 
used  extends  beyond  the  particular  action  which  was  being  dealt  with, 
it  must  be  remembered  that  the  learned  judges  were  not  engaged  in 
determining  what  is  necessary  to  support  an  action  of  deceit,  or  in 
discriminating  with  nicety  the  elements  which  enter  into  it. 

There  is  another  class  of  actions  which  I  must  refer  to  also  for  the 
purpose  of  putting  it  aside.  I  mean  those  cases  where  a  person  within 
whose  special  province  it  lay  to  know  a  particular  fact,  has  given  an 
erroneous  answer  to  an  inquiry  made  with  regard  to  it  by  a  person 
desirous  of  ascertaining  the  fact  for  the  purpose  of  determining  his 
course  accordingly,  and  has  been  held  bound  to  make  good  the  assur- 
ance he  has  given.  Burrowes  v.  Lock,  10  Ves.  470,  may  be  cited  as 
an  example,  where  a  trustee  had  been  asked  by  an  intended  lender, 
upon  the  security  of  a  trust  fund,  wliether  notice  of  any  prior  incum- 
brance upon  the  fund  had  been  given  to  him.  In  cases  like  this  it 
has  been  said  that  the  circumstance  that  the  answer  was  honestly 
made  in  the  belief  that  it  was  true  affords  no  defence  to  the  action. 
Lord  Selborne  pointed  out  in  Brownlie  v.  Campbell,  5  App.  Cas.  p. 
935,  that  these  cases  were  in  an  altogether  different  category  from 


62  PEEK   V.    DEERY.  [CHAP.    I. 

actions  to  recover  damages  for  false  representation,  such  as  we  are 
now  dealing  with. 

One  other  observation  I  have  to  make  before  proceeding  to  consider 
the  law  which  has  been  laid  down  by  the  learned  judges  in  the  Court 
of  Appeal  in  the  case  before  your  Lordships.  "  An  action  of  deceit 
is  a  common  law  action,  and  must  be  decided  on  the  same  principles, 
whether  it  be  brought  in  the  Chancery  Division  or  any  of  the  Common 
Law  Divisions,  there  being,  in  my  opinion,  no  such  thing  as  an  equit- 
able action  for  deceit."  This  was  tlie  language  of  Cotton,  L.  J.,  in 
Arkwright  v.  Newbould,  17  Ch.  D.  320.  It  was  adopted  by  Lord 
Blackburn  in  Smith  v.  Chadwick,  9  App.  Cas.  193,  and  is  not,  I  think, 
open  to  dispute. 

In  the  Court  below  Cotton,  L.  J.,  said :  "  What  in  my  opinion  is  a 
correct  statement  of  the  law  is  this,  that  where  a  man  makes  a  state- 
ment to  be  acted  upon  by  others  which  is  false,  and  which  is  known 
by  him  to  be  false,  or  is  made  by  him  recklessly,  or  without  care 
whether  it  is  true  or  false,  that  is,  without  any  reasonable  ground  for 
believing  it  to  be  true,  he  is  liable  in  an  action  of  deceit  at  the  suit 
of  any  one  to  whom  it  was  addressed,  or  any  one  of  the  class  to  whom 
it  was  addressed,  and  who  materially  induced  by  the  misstatement 
to  do  an  act  to  his  prejudice."  About  much  that  is  here  stated  there 
cannot,  I  think,  be  two  opinions.  But  when  the  learned  Lord  Justice 
speaks  of  a  statement  made  recklessly  or  without  care  whether  it  is 
true  or  false,  that  is,  without  any  reasonable  ground  for  believing  it  to 
be  true,  I  find  myself,  with  all  respect,  unable  to  agree  that  these 
are  convertible  expressions.  To  make  a  statement,  careless  whether 
it  be  true  or  false,  and  therefore  without  any  real  belief  in  its  truth, 
appears  to  me  to  be  an  essentially  different  thing  from  making, 
through  want  of  care,  a  false  statement,  which  is  nevertheless  hon- 
estly believed  to  bo  true.  And  it  is  surely  conceivable  that  a  man  may 
believe  that  what  he  states  is  the  fact,  though  he  has  been  so  wanting 
in  care  that  the  Court  may  think  that  there  were  no  sufficient  grounds 
to  warrant  his  belief.  I  shall  have  to  consider  hereafter  whether  the 
want  of  reasonable  ground  for  believing  the  statement  made  is  suf- 
ficient to  support  an  action  of  deceit.  I  am  only  concerned  for  the 
moment  to  point  out  that  it  does  not  follow  that  it  is  so,  because  there 
is  authority  for  saying  that  a  statement  made  recklessly,  without 
caring  whether  it  be  true  or  false,  affords  sufficient  foundation  for 
such  an  action. 

That  the  learned  Lord  Justice  thought  that  if  a  false  statement 
were  made  without  reasonable  ground  for  believing  it  to  be  true  an 
action  of  deceit  would  lie,  is  clear  from  a  subsequent  passage  in  his 
judgTTifnt.  lie  says  that  when  statements  are  made  in  a  prospectus 
like  the  present,  to  be  circulated  amongst  persons  in  order  to  induce 
them  to  take  shares,  "  there  is  a  duty  cast  upon  the  director  or  other 
person  who  makes  those  statements  to  take  care  that  there  are  no 


CHAP.   I.]  DECEIT.  63 

expressions  in  them  which  in  fact  are  false ;  to  take  care  that  he  has 
reasonable  ground  for  the  material  statements  which  are  contained 
in  that  document  which  he  prepares  and  circulates  for  the  very  pur- 
pose of  its  being  acted  upon  by  others." 

The  learned  judge  proceeds  to  say:  "Although  in  my  opinion  it  is 
not  necessary  that  there  should  be  what  I  should  call  fraud,  yet  in 
these  actions,  according  to  my  view  of  the  law,  there  must  be  a  de- 
parture from  duty,  that  is  to  say,  an  untrue  statement  made  without 
any  reasonable  ground  for  believing  that  statement  to  be  true ;  and  in 
my  opinion  when  a  man  makes  an  untrue  statement  with  an  intention 
that  it  shall  be  acted  upon,  without  any  reasonable  ground  for  believ- 
ing that  statement  to  be  true,  he  makes  a  default  in  a  duty  which  was 
thrown  upon  him  from  the  position  he  has  taken  upon  himself,  and 
he  violates  the  right  which  those  to  whom  he  makes  the  statement 
have  to  have  true  statements  only  made  to  them." 

Now  I  have  first  to  remark  on  these  observations  that  the  alleged 
"  right "  must  surely  be  here  stated  too  widely,  if  it  is  intended  to 
refer  to  a  legal  right,  the  violation  of  which  may  give  rise  to  an  action 
for  damages.  For  if  there  be  a  right  to  have  true  statements  only 
made,  this  will  render  liable  to  an  action  those  who  make  untrue 
statements,  however  innocently.  This  cannot  have  been  meant.  I 
think  it  must  have  been  intended  to  make  the  statement  of  the  right 
correspond  with  that  of  the  alleged  duty,  the  departure  from  which  is 
said  to  be  making  an  untrue  statement  without  any  reasonable  ground 
for  believing  it  to  be  true.  I  have  further  to  observe  that  the  Lord 
Justice  distinctly  says  that  if  there  be  such  a  departure  from  duty  an 
action  of  deceit  can  be  maintained,  though  there  be  not  what  he 
should  call  fraud.  I  shall  have  by-and-by  to  consider  the  discussions 
which  have  arisen  as  to  the  difference  between  the  popular  understand- 
ing of  the  word  "  fraud  "  and  the  interpretation  given  to  it  by  lawyers, 
which  have  led  to  the  use  of  such  expressions  as  ''  legal  fraud,"  or 
"  fraud  in  law ; "  but  I  may  state  at  once  that,  in  my  opinion,  with- 
out proof  of  fraud  no  action  of  deceit  is  maintainable.  When  I  exam- 
ine the  cases  which  have  been  decided  upon  this  branch  of  the  law,  I 
shall  endeavor  to  show  that  there  is  abundant  authority  to  warrant 
this  proposition. 

I  return  now  to  the  judgments  delivered  in  the  Court  of  Appeal. 

It  will  thus  be  seen  that  all  the  learned  judges  concurred  in  thinking 
that  it  was  sufficient  to  prove  that  the  representations  made  were  not 
in  accordance  with  fact,  and  that  the  person  making  them  had  no 
reasonable  ground  for  believing  them.  They  did  not  treat  the  absence 
of  such  reasonable  ground  as  evidence  merely  that  the  statements 
we7*e  made  recklessly,  careless  whether  they  were  true  or  false,  and 
without  belief  that  they  were  true,  but  they  adopted  as  tlie  test  of 
liability,  not  the  existence  of  belief  in  the  truth  of  the  assertions  made. 


54  PEEK   V.    DERRY.  [CHAP.   I. 

but  whether  the  belief  in  them  was  founded  upon  any  reasonable 
grounds.  It  will  be  seen,  further,  that  the  Court  did  not  purport 
to  be  establishing  any  new  doctrine.  They  deemed  that  they  were 
only  following  the  cases  already  decided,  and  that  the  proposition 
which  they  concurred  in  laying  down  was  established  by  prior  author- 
ities. Indeed,  Lopes,  L.  J.,  expressly  states  the  law  in  this  respect  to 
be  well  settled.  This  renders  a  close  and  critical  examination  of  the 
earlier  authorities  necessary. 

I  now  arrive  at  the  earliest  case  in  which  I  find  the  suggestion  that 
an  untrue  statement  made  without  reasonable  ground  for  believing 
it  will  support  an  action  for  deceit.  In  Western  Bank  of  Scotland  v. 
Addie,  Law  Eep.  1  H.  L.,  Sc.  145,  162,  the  Lord  President  told  the 
jury  "  that  if  a  case  should  occur  of  directors  taking  upon  themselves 
to  put  forth  in  their  report  statements  of  importance  in  regard  to  the 
affairs  of  the  bank  false  in  themselves  and  which  they  did  not  believe, 
or  had  no  reasonable  ground  to  believe  to  be  true,  that  would  be  a 
misrepresentation  and  deceit."  Exception  having  been  taken  to  this 
direction  without  avail  in  the  Court  of  Session,  Lord  Chelmsford  in 
this  House  said :  "  I  agree  in  the  propriety  of  this  interlocutor.  In 
the  argument  upon  this  exception  the  case  was  put  of  an  honest  belief 
being  entertained  by  the  directors,  of  the  reasonableness  of  which  it 
was  said  the  jury,  upon  this  direction,  would  have  to  judge.  But  sup- 
posing a  person  makes  an  untrue  statement  which  he  asserts  to  be 
the  result  of  a  bona  fide  belief  in  its  truth,  how  can  the  bona  fides  be 
tested  except  by  considering  the  grounds  of  such  belief?  And  if  an 
untrue  statement  is  made,  founded  upon  a  belief  which  is  destitute  of 
all  reasonable  grounds,  or  which  the  least  inquiry  would  immediately 
correct,  I  do  not  see  that  it  is  not  fairly  and  correctly  characterized 
as  misrepresentation  and  deceit." 

I  think  there  is  here  some  confusion  between  that  which  is  evidence 
of  fraud  and  that  which  constitutes  it.  A  consideration  of  the 
grounds  of  belief  is  no  doubt  an  important  aid  in  ascertaining  whether 
the  belief  was  really  entertained.  A  man's  mere  assertion  that  he 
believed  the  statement  he  made  to  be  true  is  not  accepted  as  conclusive 
proof  that  he  did  so.  There  may  be  such  an  absence  of  reasonable 
ground  for  his  belief  as,  in  spite  of  his  assertion,  to  carry  conviction 
to  the  mind  that  he  had  not  really  the  belief  which  he  alleges.  If  the 
learned  Lord  intended  to  go  further,  as  apparently  he  did,  and  to  say 
that  though  the  belief  was  really  entertained,  yet  if  there  were  no 
reasonable  grounds  for  it,  the  person  making  the  statement  was  guilty 
of  fraud  in  the  same  way  as  if  he  had  known  what  he  stated  to  be 
false,  I  say,  with  all  respect,  that  the  previous  authorities  afford  no 
warrant  for  the  view  that  an  action  of  deceit  would  lie  under  such 
c'irciinistances.  A  man  who  forms  his  belief  carelessly,  or  is  unroason- 
,i1)lv  chmIuIous,  may  be  l)lauicworlliv  when  he  makes  a  representation 


CHAP.    I.]  DECEIT.  65 

on  which  another  is  to  act,  but  he  is  not,  in  my  opinion,  fraudulent 
in  the  sense  in  which  that  word  was  used  in  all  the  case  from  Pasley 
V.  Freeman,  2  Smith's  L.  C.  74,  down  to  that  with  which  I  am  now 
dealing.  Even  when  the  expression  "  fraud  in  law "  has  been  em- 
ployed there  has  always  been  present,  and  regarded  as  an  essential 
element,  that  the  deception  was  wilful,  either  because  the  untrue 
statement  was  known  to  be  untrue,  or  because  belief  in  it  was  asserted 
without  such  belief  existing. 

I  have  made  these  remarks  with  the  more  confidence  because  they 
appear  to  me  to  have  the  high  sanction  of  Lord  Cranworth.  In 
delivering  his  opinion  in  the  same  case  he  said :  "  I  confess  that  my 
opinion  was,  that  in  what  his  Lordship  (the  Lord  President)  thus 
stated,  he  went  beyond  what  principle  warrants.  If  persons  in  the 
situation  of  directors  of  a  bank  make  statements  as  to  the  condition 
of  its  affairs  which  they  bona  fide  believe  to  be  true,  I  cannot  think 
they  can  be  guilty  of  fraud  because  other  persons  think,  or  the  Court 
thinks,  or  your  Lordships  think,  that  there  was  no  sufficient  ground 
to  warrant  the  opinion  which  they  had  formed.  If  a  little  more  care 
and  caution  must  have  led  the  directors  to  a  conclusion  different  from 
that  which  they  put  forth,  this  may  afford  strong  evidence  to  show 
that  they  did  not  really  believe  in  the  truth  of  what  they  stated,  and 
so  that  they  were  guilty  of  fraud.  But  this  would  be  the  consequence 
not  of  their  having  stated  as  true  what  they  had  not  reasonable  ground 
to  believe  to  be  true,  but  of  their  having  stated  as  true  what  they  did 
not  believe  to  be  true." 

Having  now  drawn  attention,  I  believe,  to  all  the  cases  having  a 
material  bearing  upon  the  question  under  consideration,  I  proceed  to 
state  briefly  the  conclusions  to  which  I  have  been  led.  I  think  the 
authorities  establish  the  following  propositions:  First,  in  order  to 
sustain  an  action  of  deceit  there  must  be  proof  of  fraud,  and  nothing 
short  of  that  will  suffice.  Secondly,  fraud  is  proved  when  it  is  shown 
that  a  false  representation  has  been  made  (1)  knowingly,  or  (2) 
without  belief  in  its  truth,  or  (3)  recklessly,  careless  whether  it  be 
true  or  false.  Although  I  have  treated  the  second  and  third  as  dis- 
tinct cases,  I  think  the  third  is  but  an  instance  of  the  second,  for  one 
who  makes  a  statement  under  such  circumstances  can  have  no  real 
belief  in  the  truth  of  what  he  states.  To  prevent  a  false  statement 
being  fraudulent  there  must,  I  think,  always  be  an  honest  belief  in 
its  truth.  And  this  probably  covers  the  whole  ground,  for  one  who 
knowingly  alleges  that  which  is  false,  has  obviously  no  such  honest 
belief.  Thirdly,  if  fraud  be  proved,  the  motive  of  the  person  guilty 
of  it  is  immaterial.  It  matters  not  that  there  was  no  intention  to 
cheat  or  injure  the  person  to  whom  the  statement  was  made. 

I  think  these  propositions  embrace  all  that  can  be  supported  by 
decided  cases  from  the  time  of  Pasley  v.  Freeman,  2  Smith's  L.  C. 


66  PEEK   V.    DERRY.  [CHAP.   I. 

74,  down  to  Western  Bank  of  Scotland  v.  Addic,  Law  Eep.  1  H.  L., 
Sc.  145,  in  1867,  when  the  first  suggestion  is  to  be  found  that  belief 
in  the  truth  of  what  he  has  stated  will  not  suffice  to  absolve  the  de- 
fendant if  his  belief  be  based  on  no  reasonable  grounds.  I  have 
shown  that  this  view  was  at  once  dissented  from  by  Lord  Cranworth, 
so  that  there  was  at  the  outset  as  much  authority  against  it  as  for 
it.  And  I  have  met  with  no  further  assertion  of  Lord  Chelmsford's 
view  until  the  case  of  Weir  v.  Bell,  3  Ex.  D.  238,  where  it  seems  to 
be  involved  in  Lord  Justice  Cotton's  enunciation  of  the  law  of  deceit. 
But  no  reason  is  there  given  in  support  of  the  view;  it  is  treated  as 
established  law.  The  dictum  of  the  late  Master  of  the  Eolls,  that  a 
false  statement  made  through  carelessness,  which  the  person  making 
it  ought  to  have  known  to  be  untrue,  would  sustain  an  action  of  deceit, 
carried  the  matter  still  further.  But  that  such  an  action  could  be 
maintained  notwithstanding  an  honest  belief  that  the  statement  made 
was  true,  if  there  were  no  reasonable  grounds  for  the  belief,  was,  I 
think,  for  the  first  time  decided  in  the  case  now  under  appeal. 

In  my  opinion  making  a  false  statement  through  want  of  care  falls 
far  short  of,  and  is  a  very  different  thing  from,  fraud,  and  the  same 
may  be  said  of  a  false  representation  honestly  believed  though  on 
insufficient  grounds.  Indeed  Cotton,  L.  J.,  himself  indicated,  in  the 
words  I  have  already  quoted,  that  he  should  not  call  it  fraud.  But  the 
whole  current  of  authorities,  with  which  I  have  so  long  detained  your 
Lordships,  shows  to  my  mind  conclusively  that  fraud  is  essential  to 
found  an  action  of  deceit,  and  that  it  cannot  be  maintained  where 
the  acts  proved  cannot  properly  be  so  termed.  And  the  case  of  Taylor 
V.  Ashton,  11  M.  &  W.  401,  appears  to  me  to  be  in  direct  conflict  with 
the  dictum  of  Sir  George  Jessel,  and  inconsistent  with  the  view  taken 
by  the  learned  judges  in  the  Court  below.  I  observe  that  Sir  Fred- 
erick Pollock,  in  his  able  work  on  Torts  (p.  243,  note),  referring,  I 
presume,  to  the  dicta  of  Cotton,  L.  J.,  and  Sir  George  Jessel,  M.  R., 
says  that  the  actual  decision  in  Taylor  v.  Ashton,  11  M.  &  W.  401,  is 
not  consistent  with  the  modern  cases  on  the  duty  of  directors  of  com- 
panies. I  think  he  is  right.  But  for  the  reasons  I  have  given  I  am 
unable  to  hold  that  anything  less  than  fraud  will  render  directors  or 
any  other  persons  liable  to  an  action  of  deceit. 

At  the  same  time  I  desire  to  say  distinctly  that  when  a  false  state- 
ment has  been  made  the  questions  whether  there  were  reasonable 
grounds  for  believing  it,  and  what  were  the  means  of  knowledge  in 
the  possession  of  the  person  making  it,  are  most  weiglity  matters  for 
consideration.  The  ground  upon  Avhich  an  alleged  ])elicf  was  founded 
is  a  most  important  test  of  its  reality.  I  can  conceive  many  cases 
where  the  fact  that  an  alleged  belief  was  destitute  of  all  reasonable 
foundalion  would  suffice  of  itself  to  convince  the  Court  that  it  was 
not  really  entertained,  and  that  the  representation  was  a  fraudulent 
one.    So,  too,  although  means  of  knowledge  are,  as  was  pointed  out 


CHAP.    I.]  DECEIT.  67 

by  Lord  Blackburn  in  Brownlie  v.  Campbell,  5  App.  Cas.  at  p.  952, 
a  very  different  thing  from  knowledge,  if  I  thought  that  a  person 
making  a  false  statement  had  shut  his  eyes  to  the  facts,  or  purposely 
abstained  from  inquiring  into  them,  I  should  hold  that  honest  belief 
was  absent,  and  that  he  was  just  as  fraudulent  as  if  he  had  knowingly 
stated  that  which  was  false. 

It  now  remains  for  me  to  apply  what  I  believe  to  be  the  law  to  the 
facts  of  the  present  case.  .  .  . 

I  quite  admit  that  the  statements  of  witnesses  as  to  their  belief  are 
by  no  means  to  be  accepted  blindfold.  The  probabilities  must  be 
considered.  Whenever  it  is  necessary  to  arrive  at  a  conclusion  as  to 
the  state  of  mind  of  another  person,  and  to  determine  whether  his 
belief  under  given  circumstances  was  such  as  he  alleges,  we  can  only 
do  so  by  applying  the  standard  of  conduct  which  our  own  experience 
of  the  ways  of  men  has  enabled  us  to  form;  by  asking  ourselves 
whether  a  reasonable  man  would  be  likely  under  the  circumstances 
so  to  believe.  I  have  applied  this  test,  with  the  result  that  I  have  a 
strong  conviction  that  a  reasonable  man  situated  as  the  defendants 
were,  with  their  knowledge  and  means  of  knowledge,  might  well  be- 
lieve what  they  state  they  did  believe,  and  consider  that  the  repre- 
sentation made  was  substantially  true. 

Adopting  the  language  of  Jessel,  M.  K.,  in  Smith  v.  Chadwick,  20 
Ch.  D.  at  p.  67,  I  conclude  by  saying  that  on  the  whole  I  have  come 
to  the  conclusion  that  the  statement,  "  though  in  some  respects  inac- 
curate and  not  altogether  free  from  imputation  of  carelessness,  was 
a  fair,  honest  and  bona  fide  statement  on  the  part  of  the  defendants, 
and  by  no  means  exposes  them  to  an  action  for  deceit." 

I  think  the  judgment  of  the  Court  of  Appeal  should  be  reversed. 
Order  of  the  Court  of  Appeal  reversed;  order 
of  Stirling,  J.,  restored;  the  respondent  to  pay 
to  the  appellants  their  costs  below  and  in  this 
House;  cause  remitted  to  the  Chancery  Di' 
vision.'^ 


LITCHFIELD    v.    HUTCHINSON. 

Supreme  Court  of  Massachusetts,  February,  1875.     117  Mass.  195. 

Tort  for  deceit  in  the  sale  of  a  horse.  The  declaration  alleged 
that  the  defendant  sold  the  plaintiff  a  horse,  for  which  the  plaintiff 
paid  the  defendant  $325 ;  that,  to  induce  the  plaintiff  to  buy  said 
horse,  the  defendant  falsely  represented  to  the  plaintiff  that  said 
horse  was  all  right  and  sound  every  way ;  that  the  plaintiff,  believing 
that  said  representation  was  true  was  thereby  induced  to  buy,  and 

iSee  McConnell  v.  V^'right,  1903,  1  Ch.  D.  546. 


68  LITCHFIELD    V.    HUTCHINSON.  [CHAl'.    I. 

did  buy,  said  horse;  but  in  truth  said  horse  was  not  all  right  and 
sound  every  way,  but  was  lame  and  sore  forward,  and  was  foundered, 
and  was  lame  in  the  fore  legs  and  shoulders,  and  was  unsound,  in- 
jured, and  of  little  value,  all  which  the  defendant  then  well  knew. 
Answer,  a  general  denial. 

Trial  in  the  Superior  Court,  before  Aldrich,  J.,  who  allowed  a  bill 
of  exceptions  in  substance  as  follows:  There  was  evidence  tending  to 
prove  that  the  defendant  made  the  representations  as  alleged  in  the 
declaration;  that  they  were  false  and  known  to  the  defendant  to  be 
false;  that  the  plaintiff  relied  on  these  representations,  and  was  in- 
duced thereby  to  purchase  the  horse  of  the  plaintiff  as  alleged;  and 
that  the  horse  was  then  in  fact  lame  and  unsound.  There  was  con- 
flicting evidence  on  all  these  points.  It  appeared  that  the  plaintiff 
paid  the  defendant  $325  for  the  horse,  and  there  was  evidence  tending 
to  show  that  he  was  not  worth,  at  the  time  of  the  sale,  over  $100. 
The  defendant  testified  that  he  made  no  representation,  whatever,  and 
that  he  had  owned  the  horse  for  three  or  four  weeks  before  the  sale 
and  had  worked  him  almost  every  day,  and  did  not  observe  any  lame- 
ness or  know  that  he  was  unsound. 

Upon  this  evidence  the  plaintiff  requested  the  judge  to  instruct  the 
jury  as  follows: 

"1.  If  the  defendant  made  a  representation  of  the  soundness  of 
the  horse  as  of  his  own  knowledge,  and  the  jury  are  satisfied  that  he 
might  have  known  by  reasonable  inquiry  and  examination  whether 
he  was  sound  or  not,  and  the  horse  was  not  sound  as  a  matter  of  fact, 
and  if  the  plaintiff  relied  on  such  representations  and  was  induced 
thereby  to  purchase  the  horse,  and  thereby  sustained  damage,  the  de- 
fendant is  liable.  2.  If  the  defendant  represented  that  the  horse  was 
sound,  when  as  a  matter  of  fact  he  was  unsound,  and  the  plaintiff  was 
by  such  representation  induced  to  buy  the  horse,  and  was  thereby  in- 
jured, then  the  defendant  is  liable.  3.  If  the  defendant  knew  the 
horse  was  unsound,  and  did  not  make  such  fact  known  to  the  plaintiff, 
but  allowed  him  to  purchase  the  same  at  a  fair  market  price  as  a 
sound  horse,  then  the  defendant  is  guilty  of  fraud  and  deceit,  and  is 
liable.  4.  If  the  defendant  had  no  knowledge  one  way  or  the  other 
as  to  the  soundness  of  the  horse,  and  still  represented  to  the  plaintiff 
that  he  was  sound,  and  he  was  in  fact  unsound,  that  would  support 
the  allegation  that  he  made  to  the  plaintiff  a  false  allegation  know- 
ingly. 5.  If  the  defendant  made  the  representations  to  the  plaintiff 
without  any  knowledge,  information  or  ground  of  belief,  and  they 
were  in  fact  false,  that  would  not  differ  in  its  legal  effect  from  an 
assertion  or  represenlaiion  known  by  the  defendant  to  be  false." 

The  judge  refused  to  give  any  of  these  instructions,  but  instead 
thereof  instructed  the  jury  that  if  upon  all  the  evidence  in  the  case 
they  were  satisfied  that  the  defendant  made  the  representations  set 
forth  in  the  declaration,  as  matters  of  fact  within  his  own  knowledge, 


CHAP.    I.]  DECEIT.  69 

and  they  should  further  find  upon  the  evidence  that  the  representa- 
tions in  any  material  respect  were  not  true,  and  that  the  defendant 
knew  they  were  false,  or  that  he  did  not  honestly  believe  them  to  be 
true,  and  that  the  plaintiff,  relying  upon  them  as  true,  was  induced 
to  purchase  the  horse  and  pay  his  money  therefor,  and  was  thereby 
damaged,  it  would  be  their  duty  to  return  a  verdict  for  the  plaintiff. 
But  that  the  action  could  not  be  maintained  by  merely  proving  that 
the  defendant  had  reasonable  cause  to  believe  the  representations,  if 
any  were  made,  were  untrue;  the  declaration  alleging  that  they  were 
fraudulently  made,  and  that  the  defendant  knew  them  to  be  false; 
and  therefore,  to  support  the  action,  there  must  be  proof  of  a  false 
representation  knowingly  made;  in  other  words,  there  must  be  a 
concurrence  of  fraudulent  intent  and  false  representation  on  the  part 
of  the  defendant.  But  that  in  the  sense  of  the  law  a  false  representa- 
tion is  knowingly  made  not  only  when  the  party  making  it  knows  it 
to  be  false,  but  also  when  a  party,  for  a  fraudulent  purpose,  states 
what  he  does  not  believe  to  be  true,  even  though  he  may  have  no 
knowledge  on  the  subject.  To  these  instructions,  and  refusals  to 
instruct,  the  plaintiff  excepted. 

Other  instructions  in  relation  to  the  materiality  of  representations, 
the  burden  of  proof,  and  the  measure  of  damages  were  given  which 
were  not  objected  to.  The  jury  returned  a  verdict  for  the  defendant, 
and  the  plaintiff  alleged  exceptions. 

Morton,  J.  This  is  an  action  of  tort,  in  which  the  plaintiff  alleges 
that  he  was  induced  to  buy  a  horse  of  the  defendant  by  representa- 
tions made  by  him  that  the  horse  was  sound,  and  that  the  horse  was, 
in  fact,  unsound  and  lame,  all  of  which  the  defendant  well  knew. 

To  sustain  such  an  action  it  is  necessary  for  the  plaintiff  to  prove 
that  the  defendant  made  false  representations,  which  were  material, 
with  a  view  to  induce  the  plaintiff  to  purchase,  and  that  the  plaintiff 
was  thereby  induced  to  purchase.  But  it  is  not  always  necessary  to 
prove  that  the  defendant  knew  that  the  facts  stated  by  him  were 
false.  If  he  states,  as  of  his  own  knowledge,  material  facts  susceptible 
of  knowledge,  which  are  false,  it  is  a  fraud  which  renders  him  liable 
to  the  party  who  relies  and  acts  upon  the  statement  as  true,  and  it 
is  no  defence  that  he  believed  the  facts  to  be  true.  The  falsity  and 
fraud  consist  in  representing  that  he  knows  the  facts  to  be  true,  of  his 
own  knowledge,  when  he  has  not  such  knoM'^ledge.  Page  v.  Bent,  2 
Met.  371.  Stone  v.  Denny,  4  Met.  151.  Milliken  v.  Thorndike,  103 
Mass.  382.    Fisher  v.  Melien,  103  Mass.  503. 

In  the  case  at  bar  the  plaintiff  asked  the  court  to  instruct  the  jury 
"  that  if  the  defendant  made  a  representation  of  the  soundness  of  the 
horse,  as  of  his  own  knowledge,  and  the  jury  are  satisfied  that  he 
might  have  known  by  reasonable  inquiry  and  examination  whether 
he  was  sound  or  not,  and  the  horse  was  not  sound  as  a  matter  of  fact, 
and  if  the  plaintiff  relied  on  such  representations,  and  was  induced 


70  COWLEY   V.   SMYTH.  [CHAP.    I. 

thereby  to  purchase  the  horse,  and  thereby  sustained  damage,  then  the 
defendant  is  liable."  We  are  of  the  opinion  that  this  instruction 
should  have  been  given  in  substance.  If  the  defect  in  the  horse  was 
one  vphich  might  have  been  known  by  reasonable  examination,  it  was 
a  matter  susceptible  of  knowledge,  and  a  representation  by  the  defend- 
ant made  as  of  his  own  knowledge  that  such  defect  did  not  exist, 
would,  if  false,  be  a  fraud  for  which  he  would  be  liable  to  the  plain- 
tiff, if  made  with  a  view  to  induce  him  to  purchase,  and  if  relied  on 
by  him. 

A  false  representation  of  this  character  is  sufficiently  set  forth  in 
the  declaration  to  constitute  a  cause  of  action,  without  tbe  further 
allegation  that  the  defendant  well  knew  the  representations  to  be 
false.  It  is  not  necessary  that  all  the  allegations  should  be  proved  if 
enough  are  proved  to  make  out  a  cause  of  action. 

The  instructions  given  upon  the  subject  embraced  in  this  prayer 
required  the  plaintiff  to  prove,  not  only  that  the  defendant  made  the 
false  representations  alleged,  as  of  his  own  knowledge,  but  also,  that 
the  defendant  knew  that  they  were  false,  or  that  he  did  not  honestly 
believe  them  to  be  true.  In  this  respect  the  instructions  were  erro- 
neous. 

Exceptions  siistained. 


COWLEY   V.  SMYTH. 

Supreme  Court  of  New  Jersey,  November,  1884.     46  N.  J.  L.  380. 

This  suit  was  brought  by  a  depositor  in  the  Mechanics'  and  La- 
borers' Savings  Bank  in  Jersey  City,  against  the  defendant,  a  director 
of  the  bank,  to  recover  damages  for  false  representations  made  by  the 
defendant  as  to  the  solvency  and  condition  of  the  bank,  whereby  the 
plaintiff  was  induced  to  leave  in  the  bank  money  he  had  on  deposit, 
which  was  lost  by  reason  of  the  subsequent  failure  of  the  bank. 

The  certificate  from  the  Circuit  presents  for  the  advisory  opinion 
of  this  court  the  question  whether  there  was  error  in  these  proposi- 
tions in  the  charge  to  the  jury: 

1,  That  if  the  defendant  made  the  representations  as  matter  of  his 
own  knowledge,  and  so  positively  asserted  tliat  he  knew  tlie  fact  to  be 
as  he  represented,  and  tlie  fact  was  not  as  he  represented,  although  he 
may  not  have  known  them  to  be  false,  and  the  plaintiff  acted  upon  the 
representations,  they  not  being  true,  and  suffered  damage,  the  plain- 
tiff may  recover. 

2.  That  if  he  asserted  the  fact  as  to  the  condition  of  tlie  bank  of 
his  own  positive  knowledge,  and  did  not  in  fact  know  what  its  con- 
dition was,  then  the  plaintiff,  acting  upon  tliat,  and  being  injured, 
would  be  entitled  to  recover. 


CHAP.    I.]  DECEIT.  71 

Depue,  J.  This  action  is  an  action  on  the  case  for  deceit.  There 
is  a  distinction  between  relief,  either  affirmative  or  defensive,  in 
courts  of  equity,  on  the  ground  of  fraud,  and  the  remedy  for  fraud 
in  a  court  of  law.  Courts  of  equity  grant  affirmative  relief  by  way 
of  reformation  or  cancellation  of  instruments,  and  even  defensive  re- 
lief in  proceedings  to  enforce  an  obligation  or  liability,  on  the  ground 
of  constructive  fraud,  such  as  would  afford  no  relief  in  law,  espe- 
cially by  action  for  deceit.  2  Pom.  Eq.,  s.  872;  Arkright  v.  New- 
bold,  L.  R.,  17  Ch.  Div.  302,  317,  330;  Eedgrave  v.  Hurd,  20  Id.  1, 
12.  Eeese  Eiver  Silver  Mining  Co.  v.  Smith,  L.  E.,  4  H.  of  L.  Cas. 
64,  in  which  Lord  Cairns  held  that  "  if  persons  make  assertions  of 
facts  of  which  they  are  ignorant,  whether  such  assertions  are  true  or 
untrue,  they  become,  in  a  civil  point  of  view,  as  responsible  as  if  they 
had  asserted  that  which  they  knew  to  be  untrue,"  is  an  instance  of 
equitable  relief  by  way  of  rescission.  The  bill  was  filed  by  a  sub- 
scriber for  stock  to  be  relieved  from  a  subscription  induced  by  false 
representations  as  to  the  property  of  the  corporation.  In  that  case, 
as  appears  in  the  report  in  L.  E.,  2  Ch.  App.  604,  the  directors  issued 
the  prospectus  containing  the  false  statement  on  the  faith  of  repre- 
sentations of  the  vendor  of  the  property  and  without  any  knowledge 
of  their  untruth,  and  a  subscriber  for  stock,  who  was  misled  by  the 
representations,  was  relieved  in  equity  from  his  subscription.  The 
doctrine  of  equitable  estoppel,  or  estoppel  in  pais,  which  has  been 
adopted  by  courts  of  law  from  the  courts  of  equity,  also  presents 
considerations  which  do  not  apply  to  an  action  for  deceit.  The 
theory  on  which  that  doctrine  is  founded  is  that  a  party  should  not 
be  allowed  to  retract  an  admission  or  affirmation  which  was  intended 
to  influence  the  conduct  of  another,  if  the  retraction  would  materially 
injure  the  latter.  Phillipsburg  Bank  v.  Fulmer,  2  Vroom  52,  55; 
Campbell  v.  Nichols,  4  Id.  81,  87.  The  cases  which  hold  that  an 
agent  who,  without  competent  authority,  induces  another  to  contract 
with  him  as  the  agent  of  a  third  party,  is  liable  in  damages  without 
regard  to  his  moral  innocence  in  the  supposition  that  he  had  the 
authority  he  assumed  to  have,  also  rest  on  a  special  ground  —  on  the 
ground  of  an  implied  warranty  of  authority.  Eandall  v.  Trimen,  16 
C.  B.  786;  Collen  v.  Wright,  8  E.  &  B.  647,  656;  Eichardson  v. 
Williamson,  L.  E.  6  Q.  B.  276,  279 ;  Weeks  v.  Propert,  L.  E.,  8  C.  P. 
427.  The  observation  of  Lord  Hatherly  that  "if  a  man  misrepre- 
sents a  fact,  to  that  fact  he  is  bound  if  any  other  person,  misled  by 
such  misrepresentation,  acts  upon  it  and  thereby  suffers  damage," 
was  made  with  respect  to  cases  of  this  kind.  Beattie  v.  Lord  Ebury, 
L.  E.,  7  H.  of  L.  Cas.  102,  130. 

The  action  of  deceit,  to  recover  damages  for  a  false  and  fraudu- 
lent representation,  differs  in  principle  from  the  cases  that  have 
been  referred  to.  In  such  an  action  a  false  representation,  without 
a  fraudulent  design,  is  insufficient.     There  must  be  moral  fraud  in 


72  COWLEY   V.   SMYTH.  [CHAP.    I. 

the  misrepresentation  to  support  the  action.^  Pasley  v.  Freeman,''  3 
T.  K.  51,  and  Hay  croft  v.  Creasy,  2  East,  93,  are  the  leading  cases  on 
this  subject.  Both  of  these  cases  were  decided  by  a  divided  court. 
In  Paisley  ^  v.  Freeman  the  question  arose  on  a  motion  in  arrest  of 
judgment.  The  count  in  the  declaration  which  gave  rise  to  the  mo- 
tion averred  that  the  defendant,  "  intending  to  deceive  and  defraud 
the  plaintiffs,  did  wrongfully  and  deceitfully  encourage  the  plaintiffs 
to  sell  and  deliver  to  one  J.  C.  F.  divers  goods  .  .  .  upon  trust,  and 
did  for  that  purpose  .  .  .  falsely,  deceitfully  and  fraudulently  assert 
and  affirm  to  the  plaintiffs  that  the  said  J  C.  F.  .  .  .  was  a  person 
safely  to  be  trusted  and  given  credit  to,  and  did  thereby  falsely, 
fraudulently  and  deceitfully  cause  and  procure  the  plaintiffs  to  sell 
and  deliver  the  said  goods  .  .  .  upon  trust  and  credit  to  the  said 
J.  C.  F."  The  count  also  contained  an  averment  that  J.  C.  F.  was 
not  a  person  safely  to  be  trusted  and  given  credit  to,  and  that  the 
defendant  well  knew  the  same.  The  court  held  that  a  false  affirma- 
tion, made  with  intent  to  defraud  the  plaintiff,  whereby  the  plaintiff 
receives  damage,  is  the  ground  of  an  action  upon  the  case  in  the 
nature  of  deceit,  and  that  as  a  matter  of  pleading,  fraudulenter  with- 
out sciens,  or  sciens  without  fraudulenter,  would  be  sufficient,  but  that 
the  fraud  must  be  proved.  Haycraft  v.  Creasy  was  before  the  court 
on  a  rule  for  a  new  trial,  after  a  verdict  for  the  plaintiff.  In  that 
case  the  defendant,  to  an  inquiry  by  the  plaintiff  concerning  the 
credit  of  another,  made  the  representation  that  the  party  might  safely 
be  credited,  and  that  he  spoke  this  from  his  own  knowledge  and  not 
from  hearsay.  The  court  (Gross,  Lawrence  and  LeBlanc,  JJ., 
Lord  Ken  yon  dissenting)  held  that  the  action  could  not  be  main- 
tained, it  appearing  tliat  the  representation  was  made  by  the  defend- 
ant bona  fide  and  with  a  belief  of  the  truth  of  it.  Gross,  J.,  said,  "  It 
is  true  that  he  (the  defendant)  asserted  his  own  knowledge  upon  the 
subject;  but  consider  what  the  subject  matter  was  of  which  that  knowl- 
edge was  predicated.  It  was  concerning  the  credit  of  another,  which 
is  a  matter  of  opinion.  When  he  used  these  words,  therefore,  it  is 
plain  tliat  he  meant  only  to  convey  his  strong  belief  in  her  credit, 
founded  upon  the  means  he  had  of  forming  such  opinion  and  belief. 
There  is  no  reason  for  us  to  suppose  that,  at  the  time  of  making  those 
declarations,  he  meant  to  tell  a  lie  and  mislead  the  plaintiff."  Law- 
rence, J.,  said,  "  The  question  is  whether,  if  a  person  asserts  that  he 
knows  such  a  one  to  be  a  person  of  fortune,  and  tlie  fact  be  otherwise, 
although  the  party  making  the  assertion  believed  it  to  be  true,  an 
action  will  lie  to  recover  damages  for  an  injury  sustained  in  conse- 
quence of  such  misrepresentation.  .  .  .  Stress  has  been  laid  on  the 
(hifcndant's  assertion  of  his  own  knowledge  of  the  matter;    but  per- 

'  Wlint   tho  court  Hays,  infra,  as  to  the  evidence  by  which  fraud  may  be  proved, 
Hhoiild  lie  carofully  noted. 
»  Antf.  p.  ;jl. 
»  81c. 


CHAP.   I.]  DECEIT.  73 

sons  in  general  are  in  the  habit  of  speaking  in  this  manner  without 
understanding  knowledge  in  the  strict  sense  of  the  word  in  which  a 
lawyer  would  use  it.  .  .  .  In  order  to  support  the  action  the  repre- 
sentation must  be  made  malo  animo.  It  is  not  necessary  that  the 
party  should  gain  anytliing  for  himself  by  it.  If  he  make  it  with  a 
malicious  intention  that  another  should  be  injured  by  it,  he  shall 
make  compensation  in  damages.  But  there  must  be  something  more 
than  misapprehension  or  mistahe."  LeBlanc,  J.,  said  "  by  fraud  I 
understand  an  intention  to  deceive.  Whether  it  be  from  any  expecta- 
tion of  advantage  to  the  party  himself,  or  from  ill  will  towards  the 
other,  is  immaterial.  The  question  here  is  whether  the  defendant's 
saying  that  which,  critically  and  accurately  speaking,  was  not  true, 
hut  not  having  said  it  with  intention  to  deceive,  brings  this  case 
within  Paisley  ^  v.  Freeman.    /  think  not." 

The  Court  of  Queen's  Bench  departed  from  the  doctrine  of  Hay- 
craft  V.  Creasy  in  two  cases,  and  held  that  an  action  at  law  might  be 
maintained  for  false  representations,  though  there  was  neither  fraud 
nor  negligence.  Fuller  v.  Wilson,  3  Q.  B.  57;  Evans  v.  Collins,  5 
Id.  804.  But  Wilson  v.  Fuller  was  reversed  on  error  (3  Q.  B.  68, 
1009),  and  the  question  was  finally  set  at  rest  in  the  English  courts 
in  Taylor  v.  Ashton,  11  M.  &  W.  401,  and  Ormrod  v.  Huth,  14  Id. 
651.  In  Taylor  v.  Ashton  the  suit  was  against  the  directors  of  a 
banking  company  for  publishing  a  false  report  of  the  condition  of 
the  bank.  The  report  had  been  prepared  by  the  officers  of  the  com- 
pany, and  adopted  at  a  meeting  of  the  directors.  The  judge  charged 
the  jury  that  they  must  be  satisfied  that  a  fraud —  that  is,  a  moral 
fraud  —  had  been  committed  by  the  defendants.  The  jury,  under 
this  instruction,  found  for  the  defendants,  stating,  at  the  same  time, 
that  the  defendants  had  been  guilty  of  gross  and  unpardonable  negli- 
gence in  publishing  the  report.  On  motion  for  a  new  trial  the  court 
held  that  an  untrue  representation  made  for  a  fraudulent  purpose 
would  sustain  an  action  for  deceit;  that  it  was  not  necessary  to  show 
that  the  defendants  knew  the  representation  to  be  false  if  it  was  made 
for  a  fraudulent  purpose,  and  that  the  proper  question  was  left  to  the 
jury.  In  delivering  the  judgment  of  the  court,  Parke,  B.,  said,  "  It 
was  contended  that  it  was  not  necessary  that  moral  fraud  should  be 
committed  in  order  to  render  these  persons  liable;  .  .  .  that  the  jury 
found  the  defendants  not  guilty,  but,  at  the  same  time,  expressed  their 
opinion  that  the  defendants  had  been  guilty  of  gross  negligence,  and 
that  that,  accompanied  with  a  damage  to  the  plaintiff,  .  .  .  would 
be  sufficient  to  give  him  a  right  of  action.  From  this  proposition," 
the  learned  judge  added,  "  we  entirely  dissent,  because  we  are  of 
opinion  that,  independently  of  contract,  no  one  can  be  made  respon- 
sible for  a  representation  unless  it  be  fraudulently  made.'*  In  Ormrod 
V.  Huth  the  action  was  in  ease  for  false  representations.     The  suit 


74  COWLEY    V.   SMYTH.  [CHAP.    I. 

arose  upon  a  sale  of  cotton  by  sample  —  the  cotton  delivered  not  being 
equal  in  quality  with  the  sample.  The  plaintiff's  counsel  contended 
that  the  delivery  of  samples  not  corresponding  with  the  bulk  was  a 
false  representation  of  the  quality  of  the  cotton,  which  must  be  con- 
sidered, in  point  of  law,  as  fraudulent,  as  being  the  statement  of  a  fact 
which  the  party  making  it  did  not  hnow  to  he  true.  The  judge 
directed  the  jury  that  unless  they  could  see  grounds  for  inferring 
that  the  defendants  or  their  brokers  were  acquainted  with  the  fraud 
that  had  been  practised  in  the  packing,  or  had  acted  in  the  transaction 
against  good  faith  or  with  a  fraudulent  purpose,  the  defendants  were 
entitled  to  a  verdict.  On  error  the  Court  of  Exchequer  Chamber  sus- 
tained the  charge  of  the  judge.  Tindal,  C.  J.,  delivering  the  opinion 
of  the  court,  said  that  "  the  rule  to  be  deduced  from  all  the  cases 
appears  to  us  to  be  that  where,  upon  the  sale  of  goods,  the  purchaser 
is  satisfied  without  requiring  a  warranty,  he  cannot  recover  upon  a 
mere  representation  of  the  quality,  .  .  .  unless  he  can  show  that  the 
representation  was  bottomed  in  fraud.  If,  indeed,  the  representation 
was  false  to  the  knowledge  of  the  party  making  it,  this  would,  in 
general,  be  conclusive  evidence  of  fraud;  but  if  the  representation 
was  honestly  made,  and  believed  at  the  time  to  be  true  by  the  party 
making  it,  though  not  true  in  point  of  fact,  we  think  it  does  not 
amount  to  fraud  in  law."  The  English  courts  have  considered  these 
decisions  as  a  finality,  and  it  is  now  there  settled  that  there  can  be 
no  fraud  without  dishonest  intention  —  no  such  fraud  as  was  for- 
merly termed  legal  fraud.    1  Benj.  on  Sales  (Corbin's  ed.),  s.  638. 

The  American  cases,  as  might  be  expected  of  a  subject  so  prolific 
of  decisions,  are  not  altogether  harmonious.  Mr.  Pomeroy,  speaking 
of  the  cases  I  have  cited  from  the  Queen's  Bench  as  holding  that  a 
representation,  false  in  fact,  if  acted  upon,  would  support  an  action, 
and  that  the  defendant's  liability  was  independent  of  his  knowledge  or 
ignorance  of  its  actual  falsity,  says,  "  This  theory  admitted  the  pos- 
sibility of  fraud  at  law  where  there  was  no  moral  delinquency.  It 
denied  that  moral  wrong  was  an  essential  element  in  the  legal  con- 
ception of  fraud.  The  same  view  was  for  a  time  accepted  and 
adopted  by  a  considerable  number  of  decisions  in  different  American 
states.  These  cases  have,  however,  been  overruled,  and  the  theory 
itself  abandoned  in  England,  and  generally,  if  not  universally, 
throughout  the  states  of  our  own  country.  It  is  now  a  settled  doc- 
trine of  the  law  that  there  can  be  no  fraud,  misrepresentation  or  con- 
cealment without  some  moral  delinquency.  There  is  no  actual  legal 
fraud  which  is  not  also  a  moral  fraud."  2  Pom.  Eq.,  s.  884.  The 
I'^nglish  and  American  cases  are  fully  cited  in  the  notes  to  Paisley  ^  v. 
Freeman,  2  Sm.  Lead.  Cas.  170-180.  They  have  placed  the  law  on 
this  subject  where  it  was  put  by  Paisley  ^  v.  Freeman  and  Haycraft  v. 
Creasy,  and  have,  I  think,  upon  principle  as  well  as  by  the  great 

'  sic. 


CHAP.   I.]  DECEIT.  75 

weight  of  autliority,  established  the  law  on  the  rational  basis  that  in 
the  action  for  deceit,  moral  fraud  is  essential  to  furnish  a  ground  of 
action. 

The  principle  on  which  the  action  for  deceit  is  founded  being  as- 
certained, the  next  consideration  is  with  respect  to  the  proof  and  the 
proper  instructions  upon  the  evidence;  for,  whatever  the  character  of 
the  evidence  may  be  —  whether  it  consists  of  knowledge  of  the  falsity 
of  the  representation  or  some  other  fraudulent  device  intended  for 
the  purpose  of  deception  —  the  evidence  must  be  submitted  to  the 
jury  under  proper  instructions.  And  I  think  much  of  the  apparent 
conflict  in  the  cases  has  arisen  from  the  failure  to  discriminate  be- 
tween the  issue  to  be  proved  and  the  force  and  effect  of  the  evidence 
presented. 

The  simplest  form  in  which  the  question  of  the  sufficiency  of  proof 
arises  is  where  the  proof  is  that  the  representation  was  false  to  the 
defendant's  knowledge.  The  scienter  as  well  as  the  falsehood  being 
proved,  proof  of  the  fraudulent  intent  is  regarded  as  conclusive. 
Evidence  that  the  defendant  intended  no  fraud  will  not  be  received, 
and  the  jury  will  be  instructed  to  find  for  the  plaintiff",  though  they 
should  be  of  opinion  that  the  defendant  was  not  instigated  by  a  cor- 
rupt motive  of  gain  for  himself,  or  by  a  malicious  motive  of  injury 
to  the  plaintiff.  Foster  v.  Charles,  6  Bing.  396;  s.  c,  7  Id.  105; 
Polhill  V.  Walter,  3  B.  &  Ad.  114;  and  Mylne  v.  Marwood,  15  C.  B. 
778,  are  cases  of  this  kind.  In  each  of  these  cases  the  proof  was  that 
the  representation  was  false  to  the  knowledge  of  the  defendant.  The 
jury  added  to  its  finding  an  expression  of  opinion  that  there  was  no 
fraudulent  intent,  but  the  court  nevertheless  entered  judgment  for 
the  plaintiff  on  the  ground  that  a  wilful  falsehood  was  a  fraud.  The 
language  of  Lord  Campbell  in  Wilde  v.  Gibson,  1  H.  of  L.  Cas.  605, 
633,  was  directed  to  cases  of  this  aspect;  and  Jessel,  M.  R.,  in  a 
ease  where  it  was  proved  that  the  representation  was  untrue  to  the 
defendant's  knowledge,  refused  to  receive  evidence  that  he  in  fact 
believed  it  to  be  true.    Hine  v.  Campion,  L.  R.,  7  Ch.  Div.  344. 

In  other  cases  of  actionable  frauds,  the  probative  force  and  effect 
of  the  evidence  to  establish  the  fraudulent  intent  will  depend  upon  the 
circumstances  of  the  particular  case.  This  question  is  presented  in 
a  complex  form  where  the  defendant  has  added  to  a  representation  — 
which  turns  out  to  be  untrue,  but  was  not  false  to  his  knowledge  —  an 
affirmation  that  he  made  the  representation  as  of  his  own  knowledge. 
In  such  cases  the  force  and  effect  of  the  evidence  will  depend,  in  a 
great  measure,  upon  the  nature  of  the  subject  concerning  which  the 
representation  was  made.  If  it  be  with  respect  to  a  specific  fact  or 
facts  susceptible  of  exact  knowledge,  and  the  subject  matter  be  such 
as  that  the  affirmation  of  knowledge  is  to  be  taken  in  its  strict  sense,, 
and  not  merely  as  a  strong  expression  of  belief,  the  falsehood  in  such 
a  representation  lies  in  the  defendant's  affirmation  that  he  had  the 


76  COWLEY    V.    SMYTH.  [CHAP.    I. 

requisite  knowledge  to  vouch  for  the  truth  of  his  assertions,  and  that 
being  untrue,  the  falsehood  would  be  wilful  and  therefore  fraudulent. 
But  where  the  representation  is  concerning  a  condition  of  affairs  not 
susceptible  of  exact  knowledge,  such  as  representations  with  respect 
to  the  credit  and  solvency  of  a  third  person,  or  the  condition  or 
credit  of  a  financial  institution,  the  assertion  of  knowledge,  as  was 
held  in  Haycraft  v.  Creasy,  "  is  to  be  taken  secundum  subjectam  mate- 
riam,  as  meaning  no  other  than  a  strong  belief  founded  upon  what 
appeared  to  the  defendant  to  be  reasonable  and  certain  grounds."  In 
such  a  case  the  question  is  wholly  one  of  good  faith.  The  form  of 
the  affirmation  will  cast  the  burden  of  proof  on  the  defendant,  but 
when  the  evidence  is  in,  the  issue  is  whether  the  defendant  honestly 
believed  the  representation  to  be  true.  In  support  of  such  an  issue 
the  defendant  may,  by  way  of  exculpation,  resort  to  evidence  not 
admissible  in  actions  for  other  kinds  of  deceit.  He  may,  as  in  Hay- 
craft  V.  Creasy,  give  evidence  that  the  person  whose  ability  he  affirmed 
lived  in  a  style,  and  with  such  appearances  of  property  and  means, 
as  gave  assurances  of  affluence.  He  may  give  in  evidence  the  informa- 
tion he  had  upon  the  subject.  Shrewsbury  v.  Blount,  2  M.  &  G.  475, 
and  show  the  general  reputation  for  trustworthiness  of  the  person 
whose  credit  he  affirmed.  Sheen  v.  Bumpsted,  2  H.  &  C.  193.  In 
fine,  he  may  avail  himself  of  any  evidence  which  may  tend  to  show 
good  faith  or  probable  grounds  for  his  belief,  leaving  the  question  to 
be  determined,  upon  all  the  evidence,  whether  his  conduct  was  bona 
fide  —  whether,  at  the  time  he  made  the  representation,  he  honestly 
believed  that  his  representation  was  true. 

The  Massachusetts  cases  cited  to  support  the  instruction  certified 
to  the  court  admit  the  distinction  I  have  referred  to.  In  Tryon  v. 
Whitmarsh,  1  Met.  1,  which  was  an  action  for  false  and  fraudulent 
representations  as  to  the  credit  of  third  persons,  whereby  the  plain- 
tiffs were  induced  to  give  them  credit,  a  verdict  for  the  plaintiffs  was 
set  aside  for  the  reason  that  the  judge  should  have  instructed  the 
jury  that  the  defendant  would  not  be  lial)le  if  they  were  of  opinion, 
from  the  evidence,  that  he  gave  an  honest  opinion,  and  believed  that 
the  persons  recommended  were  trustworthy.  In  Hazard  v.  Irwin,  18 
Pick,  96,  the  false  representation  was  by  a  vendor,  on  the  sale  of  an 
engine,  with  respect  to  its  condition.  He  made  the  representation  as 
of  his  own  knowledge.  The  condition  of  the  engine  was  a  fact  the 
vendor  could  easily  have  ascertained.  The  court  (Shaw,  C.  J.)  cited 
Haycraft  v.  Creasy,  and  distinguished  it  from  the  case  in  hand  in  that 
the  subject  matter  of  the  representation  was  "  one  of  fact  in  respect 
to  which  a  person  can  have  precise  and  accurate  knowledge,  and  in 
respect  to  which,  if  he  speaks  of  his  own  knowledge,  and  has  no  such 
knowl(!dge,  his  affirmation  is  essentially  false."  In  Page  v.  Bent,  2 
Met.  371,  the  false  representation  was  in  relation  to  tlie  nnture  and 
amount  of  the  assets  assigned  by  the  defendants.     The  condition  and 


CHAP.   I.]  DECEIT.  77 

amount  of  the  assets  were  peculiarly  within  the  knowleclge  of  the 
defendants.  The  court  (Shaw,  C.  J.)  said,  "The  principle  is  well 
settled  that  if  a  person  make  a  representation  of  a  fact  as  of  his  own 
knowledge,  in  relation  to  a  subject  matter  susceptible  of  knowledge, 
and  such  representation  is  untrue,  ...  it  is  a  fraud  and  deceit  for 
which  the  party  making  it  is  responsible.  .  .  .  But  in  a  matter  of 
opinion,  judgment  or  estimate,  if  he  states  a  thing  of  his  own  knowl- 
edge, if  he  in  fact  believes  it,  and  it  is  not  intended  to  deceive,  it  is 
not  a  fraud,  although  the  matter  misstated  is  not  true.  The  reason  is 
that  it  is  apparent  from  the  subject  matter  that  what  is  thus  stated 
as  knowledge  must  be  considered  and  understood  by  the  party  to 
whom  it  is  addressed  as  an  expression  of  strong  belief  only,  because 
it  is  a  subject  of  which  knowledge,  in  its  strict  sense,  cannot  be  had." 
In  Stone  v.  Denny,  4  Met.  151,  the  action  was  on  a  false  representa- 
tion on  a  sale  of  property  made  by  the  defendant,  on  a  schedule 
exhibited  which  he  represented  as  correct  of  his  own  knowledge. 
Dewey,  J.,  in  his  opinion,  referred  to  the  Massachusetts  cases  and 
said,  "  From  an  examination  of  those  cases  and  others  bearing  upon 
the  question,  I  apprehend,  however,  that  it  will  be  found  that  no  real 
change  has  been  sanctioned  in  the  great  and  leading  principles  of  law 
applicable  to  cases  of  deceit,  and  that  now,  as  formerly,  to  charge  a 
party  in  damages  for  a  false  representation,  ...  it  must  appear 
that  it  was  made  with  a  fraudulent  intent,  or  was  a  wilful  falsehood." 
The  illustration  he  gives  is  "  of  one  asserting  as  of  his  own  knowledge 
a  matter  of  which  he  has  no  knowledge,  nor  any  sufficient  ground  for 
making  the  assertion."  The  subsequent  observation  of  the  learned 
judge,  "  that  if  one  positively  affirms  a  fact  as  of  his  own  knowledge, 
and  his  affirmation  is  false,  his  representation  is  deemed  fraudulent," 
is  "unobjectionable  as  applied  to  the  facts  of  that  case,  where,  because 
of  the  subject  matter  of  the  representation,  the  affirmation  of  knowl- 
edge was  to  be  taken  in  its  strict  sense,  and  not  as  only  a  strong  ex- 
pression of  belief. 

The  principle  adjudged  in  Haycraft  v.  Creasy  is  applicable  to 
actions  against  directors  for  false  and  fraudulent  representations 
concerning  the  financial  condition  of  the  institution  in  their  charge. 
It  was  so  applied  in  Taylor  v.  Ashton,  which  has  become  a  leading 
case  in  the  English  law.^  The  affairs  of  such  an  institution  must 
necessarily  be  entrusted  to  executive  officers  and  subordinate  agents, 
and  the  directors  generally  cannot  know,  and  have  not  the  requisite 
ability  to  learn,  by  their  own  efforts,  the  exact  condition  of  the  affairs 
of  the  company,  and  it  has  been  found  that  no  vigilance  on  their  part 
has  been  adequate  to  protect  these  institutions  from  frauds  and 
peculations  covered  up  and  concealed  by  false  entries  and  false  reports. 
A  representation  by  a  director  that  the  institution  is  in  a  sound  and 
solvent  condition  within  his  own  knowledge  possesses  the  legal  char- 

1  See  Ante,  pp.  66,  73. 


78  COWLEY    V.   SMYTH.  [CHAP.    I. 

acteristics  of  the  like  representation  as  to  the  credit  and  financial 
ability  of  a  third  person,  such  as  was  before  the  court  in  Haycraft  v. 
Creasy,  and  it  must  be  subject  to  the  same  legal  rule. 

The  facts  on  which  this  case  was  founded  were  these :  the  plaintiff 
was  a  depositor  in  the  bank.  About  the  1st  of  August,  1878,  there 
was  a  rumor  in  circulation  affecting  the  condition  of  the  bank.  The 
defendant  was  one  of  the  directors  of  the  bank,  and  a  member  of  the 
finance  committee.  The  plaintiff,  having  heard  the  rumor,  went  to 
the  defendant  and  told  him  of  the  rumor  in  circulation,  and  that  he 
was  a  depositor  and  did  not  want  to  lose  his  money,  and  proposed  to 
take  it  out.  The  defendant  said,  "  It  can't  be  so,  unknown  to  me  and 
Mr.  Monks.  We  are  on  the  finance  committee.  There  can  be  nothing 
wrong  with  that  bank  unknown  to  me  and  Mr.  Monks.  Don't  believe 
any  of  these  false  reports;  believe  me;  take  my  word  for  it.  The 
bank  is  good,  paying  six  per  cent  —  the  best  in  the  state.  If  all  that 
is  in  Jersey  tells  you  the  bank  is  bad,  don't  believe  it  till  I  tell  you." 
He  also  said  "  there  was  a  surplus  of  over  $6000  after  the  dividends 
were  paid."  The  bank  continued  to  pay  all  demands  down  to  Novem- 
ber 1st,  1878,  when  it  went  into  the  hands  of  a  receiver.  It  was  in- 
solvent on  the  1st  of  August,  1878,  when  these  representations  were 
alleged  to  have  been  made. 

The  defendant  was  a  director  of  the  bank  from  June  8th,  1869, 
until  its  suspension  in  November,  1878,  and  a  member  of  the  finance 
committee  from  November  19th,  1877.  The  duties  of  the  finance 
committee  were  to  attend  to  all  applications  for  loans,  and  to  look 
after  the  investing  of  the  company's  funds.  The  general  charge  and 
government  of  the  bank  devolved  upon  the  executive  committee,  of 
which  the  defendant  was  not  a  member.  There  was  no  evidence  that 
the  defendant  had  actual  knowledge  of  the  condition  of  the  bank. 
On  the  contrary,  the  proof  was  that  at  a  regular  meeting  of  the 
directors,  on  the  31st  of  May,  1877,  the  president  read  his  statements, 
showing  a  surplus  of  $6000,  and  a  motion  was  adopted  declaring  a 
dividend  of  six  per  cent.  The  next  regular  meeting  was  on  the  19th 
of  November,  1877.  It  appears  by  the  minutes  that  a  statement  of 
the  assets  and  liabilities  was  read  in  detail,  and  a  dividend  of  six  per 
cent,  per  annum  was  declared  for  the  six  months  ending  October  31st, 
1877.  On  May  30th,  1878,  another  meeting  of  directors  was  held, 
at  which  the  minutes  of  the  last  meeting  were  read  and  approved, 
and  a  dividend  at  a  rate  of  six  per  cent,  for  the  six  months  ending 
April,  1878,  was  declared.  All  these  dividends  were  credited,  and 
were  paid  to  such  of  the  depositors  as  presented  their  books.  The 
defendant  was  present  at  each  of  these  meetings  of  the  directors. 

On  these  facts  the  defendant  was  not  entitled  to  the  nonsuit  he 
asked  for;  but  he  was  entitled  to  a  different  instruction  to  the  jury. 
The  case  cannot  be  distinguished  from  Haycraft  v.  Creasy  and  Taylor 
V.  Ashton,  and  it  should  have  been  left  to  the  jury  to  say  whether. 


CHAP.    I.J  DECEIT.     '  79 

upon  the  evidence,  the  defendant  made  the  representations  with  a 
fraudulent  purpose  to  deceive,  or  whether  he  made  them  in  good 
faith  and  in  the  honest  belief  that  they  were  true. 

There  will  be  a  certificate  accordingly. 


WILCOX  V.  AMEEICAN  TEL.  &  TEL.  CO. 

Court  of  Appeals  of  New  York,  October,  1903.     176  N.  Y.  115. 

The  nature  of  the  action  and  the  facts  are  stated  in  the  opinion. 

CuLLEN^  J.  The  action  was  brought  in  ejectment  to  recover  lands 
in  the  highway  occupied  by  the  defendant's  poles,  and  for  damages. 
On  the  trial  the  plaintiff  proved  title  to  the  locus  in  quo  and  the  entry 
thereon  by  the  defendant  and  the  erection  of  its  poles.  The  defend- 
ant then  put  in  evidence  an  instrument  under  seal  executed  by  the 
plaintiff  some  years  after  the  original  entry  on  the  highway,  whereby 
the  plaintiff  in  consideration  of  one  dollar  granted  to  the  defendant 
the  right  to  construct,  operate  and  maintain  its  lines  over  and  along 
the  plaintiff's  property.  The  plaintiff  admitted  his  signature  to  this 
instrument,  but  testified  that  at  the  time  of  its  execution  he  was  told 
by  an  agent  of  the  defendant  that  he  had  trimmed  one  of  the  plain- 
tiff's trees  and  wished  to  pay  him  a  dollar  for  it;  that  the  agent 
told  him  the  paper  was  a  receipt  for  a  dollar;  that  he,  the  plaintiff, 
did  not  read  the  paper,  that  he  had  not  his  spectacles  with  him,  and 
that  thereupon  relying  upon  the  statement  of  the  agent  as  to  its 
contents  he  signed  the  paper.  On  this  evidence  the  court  directed 
a  nonsuit  and  the  judgment  entered  thereon  was  affirmed  by  the  Ap- 
pellate Division  by  a  divided  court,  Mr.  Justice  Spring  writing  for 
reversal. 

The  ground  on  which  the  learned  trial  judge  disposed  of  the  case, 
as  appears  in  the  opinion  rendered  by  him  upon  denying  the  motion 
for  new  trial,  was  that  the  negligence  of  the  plaintiff  in  failing  to 
read  the  paper  which  he  signed  precluded  him  from  attacking  its 
validity.  We  think  no  such  rule  of  law  prevails  in  this  state,  though 
there  may  be  dicta  in  the  text  books  and  decisions  in  other  jurisdic- 
tions to  that  effect.  It  was  expressly  repudiated  by  this  court  in 
Albany  City  Savings  Institution  v.  Burdick,  87  N".  Y.  40,  where 
Judge  Earl  said :  "  It  is  certainly  not  just  that  one  who  has  perpe- 
trated a  fraud  should  be  permitted  to  say  to  the  party  defrauded  when 
he  demands  relief  that  he  ought  not  to  have  believed  or  trusted  him. 
Where  one  sues  another  for  negligence,  his  own  negligence  contrib- 
uting to  the  injury  will  constitute  a  defence  to  the  action ;  but  where 
one  sues  another  for  a  positive,  wilful  wrong  or  fraud,  negligence  l)y 
which  the  party  injured  exposed  himself  to  the  wrong  or  fraud  will 


80  WILCOX    V.    AMERICAN   TEL.    AND   TEL.    CO.  [CHAP.    I. 

not  bar  relief."  See,  also,  Welles  v.  Yates,  44  N.  Y.  525;  Smith  v. 
Smith,  134  N.  Y.  62.  It  is  true  that  in  the  opinion  delivered  in  the 
Smith  case  Judge  Landon  refers  to  the  relations  of  confidence  between 
the  parties,  but  only  as  affecting  the  credibility  of  the  plaintiff's  story 
that  she  executed  the  instrument  relying  on  the  defendant's  state- 
ments as  to  its  contents.  The  decision  did  not  proceed  on  any  ground 
of  trust  relations  between  the  parties.  On  the  contrary,  the  learned 
judge  said :  "  The  learned  counsel  for  the  defendant  cites  numerous 
cases,  mostly  from  other  states,  to  support  his  contention  that  plain- 
tiffs' negligence  in  not  reading  the  deed  defeats  their  appeal  to  equity 
to  relieve  them  from  it.  The  law  of  this  state  as  stated  in  Albany 
City  Savings  Institution  v.  Burdick  is  not  so  harsh  as  in  some  of  the 
cases  cited.  It  does  not,  in  cases  like  this,  impute  inexcusable  negli- 
gence to  that  omission  of  vigilance  and  care  procured  by  the  fraud  of 
the  wrongdoer."  In  the  other  cases  cited  there  was  no  relation  of 
trust  between  the  parties,  but  merely  that  of  vendor  and  purchaser. 
In  a  case  where  a  third  party  has  parted  with  value  on  the  faith  of 
the  instrument  executed  by  a  person,  the  question  of  negligence  lead- 
ing to  the  execution  of  the  instrument  might  be  material  (see  opinion 
of  Gray,  J.,  in  Harden  v.  Dorthy,  160  N.  Y.  60),  but  it  can  have 
no  relevancy  in  favor  of  the  party  who  it  is  alleged  committed  the 
fraud.  The  credibility  of  the  plaintiff's  statement  was  for  the  jury; 
if  the  trial  judge  deemed  it  unreliable  he  might  have  set  aside  a  verdict 
based  upon  it,  but  that  did  not  authorize  him  to  withdraw  the  case 
from  the  jury  or  to  direct  a  verdict  or  a  nonsuit.  McDonald  v. 
Met.  Street  Ey.  Co.,  167  N.  Y.  66. 

The  practice  adopted  by  the  plaintiff  was  entirely  proper.  He  was 
not  obliged  to  appeal  to  a  court  of  equity  for  relief  against  the  deed, 
but  when  it  was  set  up  to  defeat  his  claim  he  could  avoid  its  effect 
by  proof  of  the  fraud  by  which  it  was  obtained.  Kirchner  v.  New 
Home  Sewing  Machine  Co.,  135  N.  Y.  182.  Nor  was  he  obliged  to 
return  the  dollar  paid  to  him  on  its  execution.  The  plaintiff  does 
not  attempt  to  rescind  a  contract  as  induced  by  fraud;  the  charge 
by  him  relates,  not  to  the  contract,  but  to  the  instrument  which  pur- 
ports to  represent  the  contract.  In  such  a  case  the  return  of  the 
consideration  is  unnecessary.  Cleary  v.  Municipal  Electric  Light 
Co.,  19  N.  Y.  Supp.  951 ;  affirmed  on  opinion  below,  139  N.  Y.  643. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  costs 
to  abide  the  event. 

O'Bkien,  Bartlett  and  Werner,  J  J.,  concur;  Parker,  Ch.  J.,  not 
sitting;  Gray,  J.,  not  voting;  Haight,  J.,  dissents. 

Judgment  reversed,  etc. 


CHAP.   I.]  DECEIT.  81 

HENEY  V.  DENNIS.    HENEY  et  al.  v.  DENNIS. 

Supreme  Court  of  Maine,  January,  1901.     95  Maine,  24. 

Two  actions  for  deceit  tried  together.  The  facts  are  stated  in  the 
opinion. 

WiswELL,  C.  J.  For  some  time  prior  to  May  1,  1896,  Henry,  the 
plaintiff  in  one  of  these  suits,  had  been  engaged  in  the  wool  business 
alone,  under  the  name  of  W.  S.  Henry,  Jr.  &  Co.  On  that  day  he 
formed  a  copartnership  in  the  same  business  with  one  Charles  C.  Par- 
sons and  the  business  was  subsequently  carried  on  in  the  firm  name 
of  Henry  &  Parsons.  But  after  the  formation  of  the  firm,  Mr.  Henry 
continued  his  individual  business,  in  the  name  of  W.  S.  Henry,  Jr. 
&  Co.,  to  the  extent  of  selling  from  time  to  time  a  quantity  of  wool 
which  he  had  on  hand  at  the  time  of  the  formation  of  the  copartner- 
ship. 

On  August  15,  1896,  after  the  formation  of  the  firm  of  Henry  & 
Parsons,  but  while  Mr.  Henry  was  still  selling  on  his  own  account  the 
wool  which  he  previously  had  on  hand  and  which  had  not  been  turned 
over  to  the  firm,  Henry  wrote  a  letter  to  the  Gardiner  Woolen  Com- 
pany, in  which  he  referred  to  an  order  for  wool  just  received  and  in 
which  he  says :  "  At  Mr.  W.  D.  Eaton's  request  we  sent  you  the 
little  lot  without  any  knowledge  of  your  financial  standing,  but  if 
we  are  to  continue  to  ship  you  wool  on  60  days  time,  we  feel  justified 
in  informing  ourselves  in  that  respect  and  we  presume  that  you  would 
prefer  to  have  us  inquire  directly  of  you  than  of  outside  parties.  .  .  , 
Will  you  kindly  favor  us  with  full  particulars  which  we  trust  wili 
warrant  a  continuation  of  our  business  relations  to  our  mutual  bene- 
fits." This  letter  was  dictated  by  Mr.  Henry,  as  shown  by  the  letterj 
but  was  signed  in  the  name  of  W.  S.  Henry,  Jr.  &  Co. 

In  reply  to  this  letter  of  inquiry,  the  defendant,  to  whom  the  letter 
was  turned  over  for  reply,  under  date  of  August  24,  1896,  wrote  a 
letter  directed  to  W.  S.  Henry  &  Co.,  which,  it  is  claimed,  contained 
false  and  material  representations  as  to  the  financial  standing  and 
condition  of  the  Gardiner  Woolen  Company,  which  were  subsequently 
acted  upon  by  Mr.  Henry,  both  individually  and  as  a  member  of  the 
firm  of  Henry  &  Parsons,  by  making  sales  to  the  Woolen  Company 
on  credit,  upon  his  own  account  and  upon  that  of  the  firm.  The 
plaintiffs,  Henry  in  one  case  and  Henry  &  Parsons  in  the  other,  being 
unable  to  collect  of  the  Woolen  Company  the  amounts  due  them,  be- 
cause of  its  insolvency,  brought  these  two  actions  to  recover  for  the 
injuries  sustained  by  them  by  reason  of  the  alleged  misrepresentations 
of  the  defendant. 

The  two  cases  were  tried  together  and  the  jury  found  against  the 
defendant  in  both  cases.     The  only  question  now  presented  by  the 


82  HENRY    V.   DENNIS.  [CHAP.   1. 

exceptions  is,  whether  or  not  the  representations  contained  in  the 
defendant's  letter  directed  to  W.  S.  Henry  &  Co.  could  have  been  so 
acted  upon  and  relied  upon  by  Mr.  Henry  as  a  member  of  the  firm 
of  Henry  &  Parsons,  that  the  defendant  would  be  liable  to  that  firm 
for  any  injury  sustained  by  it  on  account  thereof,  as  well  as  to 
Henry  individually  for  any  injury  sustained  by  him  for  the  same 
reason. 

It  is  urged  in  behalf  of  the  defendant  that  he  should  not  be  and 
is  not  liable  to  the  firm  of  Henry  &  Parsons  for  any  misrepresenta- 
tions contained  in  that  letter,  because  the  letter  was  not  directed  to 
the  firm  and  because  there  was  no  privity  between  it  and  the  defend- 
ant. The  case  shows  that  the  defendant  did  not  know  of  the  exist- 
ence of  Mr.  Parsons  or  of  the  firm  of  Henry  &  Parsons.  But  Henry 
was  the  active  member  of  the  firm  and  the  one  who  made  these  sales 
upon  credit  to  the  Woolen  Company,  and  the  jury  must  have  found 
that  Henry  was  induced  to  make  these  sales  upon  credit,  both  for 
himself  and  for  the  firm,  by  the  representations  contained  in  the 
defendant's  letter,  and  that  in  making  the  sales  and  in  extending 
credit  to  the  company,  both  individually  and  as  a  member  of  the 
firm,  he  relied  upon  these  representations. 

No  authority  exactly  in  point  has  been  called  to  our  attention,  but 
the  general  principles  relative  to  the  liability  of  a  person  for  injuries 
caused  by  such  misrepresentations,  are  well  settled.  One  who  makes 
a  misrepresentation  must,  to  render  himself  liable,  have  made  it  with 
the  intention  that  it  should  be  acted  upon  by  the  person  to  whom  it 
is  made  or  by  one  to  whom  he  intended  it  should  be  communicated, 
and  he  is  therefore  responsible  to  such  persons  only  as  it  was  intended 
for. 

It  is  a  general  rule  that  a  person  cannot  complain  of  false  repre- 
sentations, for  the  purpose  of  maintaining  an  action  of  deceit,  unless 
the  representations  were  either  made  directly  to  him,  with  the  in- 
tention that  they  should  be  acted  upon  by  him,  or  made  to  another 
person  with  the  intention  that  they  should  be  communicated  to  him 
and  acted  upon  by  him.  A  representation  made  to  one  person  with 
the  intention  that  it  shall  reach  the  ears  of  another  and  be  acted 
upon  by  him,  and  which  does  reach  him,  and  is  acted  upon  by  him  to 
his  injury,  gives  the  person  so  acting  upon  it  the  same  right  to  relief 
or  redress  as  if  it  had  been  made  to  him  directly.  Am.  &  Eng.  Encyl. 
of  Law,  2d.  Ed.,  Vol.  14,  pp.  148  and  149,  and  cases  there  cited.  See 
also  Hunnewell  v.  Duxbury,^  154  Mass.  286;  Nash.  v.  Minn.  Title  Ins. 
&  Trust  Co.,  159  Mass.  437. 

Applying  these  general  principles  to  the  particular  question  here 
involved,  we  think  that  the  defendant  is  liable  to  tlie  firm  for  such 
injury  as  it  suffered  in  consequence  of  the  misrepresentations  con- 
tained in  his  h'tter,  whereby  the  firm  was  induced  to  make  sales  of 

U'ost.  p.  80. 


CHAP.    I.]  DECEIT.  83 

its  goods  to  the  Woolen  Company  upon  credit.  The  answer  of  the 
defendant  to  the  letter  of  inquiry  was  directed  to  a  firm,  its  object 
was  to  obtain  credit  for  the  Woolen  Company  from  a  firm  of  which 
Henry  was  a  member.  True,  the  defendant  did  not  know  that  Par- 
sons was  associated  in  business  with  Henry,  nor  did  he  know,  so  far 
as  the  case  shows,  that  Henry  was  also  doing  business  alone  under  a 
firm  name.  But  he  must  have  contemplated  that  the  contents  of  this 
letter  would  either  be  communicated  to  other  members  of  any  firm 
of  which  Henry  was  a  partner,  in  that  business,  and  be  acted  upon 
by  the  firm,  or  that  Henry,  acting  for  a  firm,  would  be  induced  by 
his  letter  to  give  credit  to  the  Woolen  Company.  The  letter  was  not 
only  intended  for  Henry,  but  as  well  for  those  associated  with  him 
in  that  business. 

It  is  of  no  consequence  that  the  letter  was  directed  to  W.  S.  Henry 
&  Co.,  when  it  was  in  fact  relied  upon  by  Henry  as  a  member  of  the 
firm  of  Henry  &  Parsons.  It  is  not  necessary,  in  order  for  a  defendant 
to  be  liable  for  the  consequences  of  his  misrepresentations,  that  he 
should  know  the  names  of  the  persons  to  whom  the  misrepresentations 
may  be  communicated,  provided  he  contemplated  that  they  should  be 
communicated  to  others  and  be  acted  upon  by  them. 

Here,  as  the  case  shows,  Henry,  to  whom  the  misrepresentation 
was  directly  made,  was  induced  thereby,  as  a  member  of  the  firm  of 
Henry  &  Parsons,  to  sell  the  firm's  goods  on  credit,  and  thereby  the 
firm  suffered.  This  is  precisely  what  was  within  the  intention  of  the 
defendant;  he  is  consequently  liable  therefor.  This  result  is  in  ac- 
cordance with  the  ruling  of  the  court  at  the  trial. 

Exceptions  overruled. 


TINDLE  V.  BIEKETT. 

Court  of  Appeals  of  New  York,  June,  1902.    171  N.  Y.  520. 

The  case  is  stated  in  the  opinion. 

O'Brien,  J.  The  plaintiffs  sought  to  recover  in  an  action  based 
upon  allegations  of  fraud  and  deceit  practised  upon  them  by  the 
defendant,  the  price  of  three  bills  of  goods  which  they  were  induced 
by  such  fraud  to  sell  to  a  firm  of  dealers  of  which  the  defendant  was 
a  member.  The  firm  was  composed  of  the  defendant  and  another 
person  who  died  before  the  trial,  and  by  an  order  of  the  court  the 
action  was  continued  against  the  defendant.  At  the  trial  before  the 
ODurt  and  a  jury  the  plaintiffs  were  nonsuited  and  their  counsel  ex- 
cepted and  this  exception  presents  the  question  of  law  in  the  case. 
The  judgment  was  affirmed  on  appeal. 

There  is  practically  no  dispute  about  the  facts  and  the  question 
presented  by  the  appeal  is  whether  the  plaintiffs'  proof  did  not  sustain 


84  TINDLE    V.   BIRKETT.  [CHAP.    I. 

or  tend  to  sustain  the  action.  The  three  bills  of  goods  were  sold  and 
delivered  by  the  plaintiffs  to  the  firm  at  the  following  dates  respect- 
ively: November  30,  1898,  January  24,  1899,  and  March  25th,  1899, 
and  amounted  in  the  aggregate  to  $901.86.  On  the  15th  day  of  April 
following  the  last  sale  both  of  the  members  of  the  firm  were  adjudged 
bankrupts  on  their  own  petition  in  the  Federal  court.  About  eighteen 
months  prior  to  filing  the  petition  and  on  the  16th  of  September, 
1897,  the  defendant,  for  the  purpose  of  securing  a  rating  by  the 
mercantile  agency  of  R.  G.  Dun  &  Co.,  made  and  delivered  to  that 
agency  a  statement  in  writing  as  to  the  financial  condition  of  the 
firm,  which  showed  net  assets  of  $152,858.22.  More  than  a  year  there- 
after and  on  the  2d  day  of  November,  1898,  in  reply  to  a  request  from 
the  agency,  the  defendant  wrote  a  letter  in  which  he  practically  reiter- 
ated his  former  statement  and  added  that  the  business  of  the  firm 
was  "  large,  increasing  and  profitable."  Still  later  and  on  March  9th, 
1899,  just  before  the  purchase  of  the  last  two  bills  of  goods  from  the 
plaintiffs,  a  representative  of  the  agency  called  upon  the  defendant 
personally  and  received  from  him  a  verbal  statement  that  there  had 
been  no  material  change  in  the  financial  condition  of  the  firm.  The 
agency  gave  the  firm  a  rating  of  from  $125,000  to  $200,000,  which 
was  maintained  and  never  changed.  Substantially  the  same  rating 
was  given  to  the  firm  by  the  Bradstreet  agency  upon  like  statements 
and  representations,  though  made  at  an  earlier  date,  and  the  defend- 
ant at  all  times  knew  that  the  credit  of  the  firm  was  so  rated  in  the 
reference  books  sent  by  these  agencies  to  merchants  and  business 
people.  The  plaintiffs  had  and  used  these  reference  books  of  both 
agencies  in  their  business,  and  when  defendant  applied  for  credit  they 
consulted  these  books,  and  in  reliance  on  the  correctness  of  the  rating, 
without  any  other  knowledge,  sold  and  delivered  the  goods  in  question 
upon  credit.  The  statements  upon  which  these  ratings  were  given, 
at  least  as  to  the  Dun  agency,  were  grossly  false.  The  learned  court 
below  correctly  described  this  phase  of  the  case  in  these  words  wliich 
we  can  very  well  adopt: 

"  That  the  statements  upon  which  the  rating  of  the  defendant's 
firm  was  based  by  the  mercantile  agency  of  E.  G.  Dun  &  Co.,  were 
grossly  false,  and  that  the  plaintiffs  relied  upon  such  rating  in  giv- 
ing the  firm  credit  for  the  goods  purchased  upon  the  several  occa- 
sions mentioned,  are  facts  concerning  which  there  is  and  can  be 
no  serious  dispute,  and  had  such  statements  been  made  directly  to 
the  plaintiffs  under  circumstances  which  would  fairly  warrant  the 
assumption  that  they  were  so  made  by  way  of  inducing  credit,  there 
would,  of  course,  be  no  question  as  to  the  right  of  the  plaintiffs 
to  maintain  an  action  of  this  character." 

But  the  learned  court  held  that  since  these  false  and  fraudulent 
statements  were  not  made  to  tbe  plaintiffs  personally  and  directly 
by  the  defendant,  but  to  the  agencies,  and  since  the  plaintiffs  never 


CHAP.    I.]  DECEIT.  85 

saw  the  statements  themselves,  but  only  the  result  of  them  in  the 
reference  books,  the  action  could  not  be  maintained.  That  one  mer- 
chant may  defraud  another  under  modern  business  methods  just 
as  effectually  by  a  false  and  fraudulent  statement  to  a  commercial 
agency  as  in  any  other  way  no  one  can  doubt.  That  the  defendant 
did  actually  deceive  and  defraud  the  plaintiffs  by  thus  putting  into 
circulation  in  the  business  world  a  false,  fraudulent  and  fictitious 
rating  purporting  to  express  his  true  commercial  standing  and  finan- 
cial ability  is  equally  clear.  Disregarding  mere  forms  and  methods, 
it  cannot  be  doubted  that  the  defendant  spoke  false  and  deceitful 
words  to  the  plaintifi^s  through  the  agency  just  as  effectually  as  if 
they  had  met  face  to  face  and  the  statements  had  been  made  directly 
and  personally.  The  buyer  of  goods  may  become  liable  to  the  seller 
in  fraud,  although  they  have  never  met  or  seen  each  other,  and  no 
personal  communication  that  is  false  or  fraudulent  has  passed  be- 
tween them.  If  the  former  does  just  what  this  defendant  did  and 
procures  a  fraudulent  rating,  intending  that  it  should  be  published 
to  the  business  community  and  taken  as  true,  that  is  a  fraud  upon 
the  person  who  relies  and  acts  upon  it  to  his  damage.  But  it  is 
not  necessary  to  argue  this  question  as  an  original  one  since  it  has 
been  deliberately  decided  by  this  court. 

In  Eaton,  c'  &  B.  Co.  v.  Avery,  83  N.  Y.  31,  it  was  held  that 
when  a  member  of  a  firm  makes  statements  to  a  commercial  agency, 
which  he  knows  to  be  false  as  to  the  financial  condition  of  the  firm, 
with  the  intent  that  the  statements  shall  be  communicated  to  per- 
sons interested  in  ascertaining  the  pecuniary  responsibility  of  the 
firm,  intending  thus  to  procure  credit  and  to  defraud  such  persons, 
and  such  statements  are  communicated  to  one  who  in  reliance  thereon 
sells  goods  to  the  firm  on  credit,  an  action  for  deceit  may  be  main- 
tained against  the  buyer  of  the  goods  in  favor  of  the  seller  who  has 
suffered  by  the  fraud.  That  decision  is  controlling  in  the  case  at 
bar,  since  the  two  cases  are  almost  identical  in  their  facts,  and  all 
the  objections  urged  by  the  learned  court  below  to  a  recovery  in 
this  case  were  fully  answered  upon  principle  and  authority.  The 
court  states  that  the  case  was  new  in  its  facts  but  old  in  the  prin- 
ciple involved,  and  the  cases  cited  sustain  the  statement.  The  same 
principle  was  decided  in  a  more  recent  case.  Bliss  v.  Sickles,  142 
N.  Y.  647. 

The  objections  urged  to  a  recovery  in  a  case  like  this  are  quite 
untenable.  It  is  said  that  it  would  put  business  men  at  the  mercy 
of  commercial  agencies.  No  one  need  have  any  fears  of  that,  since 
no  business  man  can  be  affected  unless  he  makes  use  of  such  an  agency 
to  give  information  to  the  business  world  of  his  financial  condition 
in  order  to  show  that  he  is  worthy  of  credit,  and  then  it  is  impossible 
to  harm  him  unless  he  makes  statements  that  he  knows  to  be  false 
for  a  fraudulent  purpose,  and  if  he  does,  there  is  no  reason  why  he 


86  HUNNEWELL   V.   DUXBURY.  [CHAP.    I. 

Bhould  not  respond  to  one  who  has  suffered  thereby.  So,  also,  it  is 
said  that  these  agencies  procure  information  from  other  sources  than 
the  statement  of  parties  seeking  credit.  That  may  be  so,  but  there 
is  little  danger  that  any  one  will  be  made  liable  in  fraud  for  false 
statements  other  than  his  own.  If  the  defendant  in  this  case  could 
show  that  he  never  made  the  statements  referred  to  he  would  have 
little  difficulty  in  defeating  this  action  notwithstanding  the  high  ra- 
ting in  the  reference  books.  A  party  who  is  really  innocent  can  always 
protect  himself  against  the  unauthorized  statements  of  others.  In 
this  case  there  was  clearly  a  false  and  excessive  rating  which  was 
justified  by  the  statements  made  by  the  defendant,  and  it  is  ad- 
mitted that  these  statements  were  false  and  fraudulent  and  that  the 
plaintiffs  relied  upon  the  rating  in  giving  the  credit.  Clearly,  this 
state  of  facts  is  a  sufficient  basis  for  a  charge  of  fraud  and  deceit. 
The  proof  was  certainly  sufficient  to  carry  the  case  to  the  jury  and 
hence  the  plaintiffs  were  improperly  nonsuited. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  costs 
to  abide  the  event. 

Parker,  Ch.  J.,  Gray,  Haight,  Martin,  J  J.  (and  Bartlett,  J., 
in  an  opinion),  concur  with  O'Bbrien,  J.;   Vann,  J.,  dissents. 

Judgment  reversed. 


HUNNEWELL   v.    DUXBURY. 

Supreme  Court  of  Massachusetts,  September,  1891.    154  Mass.  286. 

Tort,  for  fraudulent  representations  alleged  to  be  made  by  the 
defendants  as  directors  of  the  Electric  Advertising  Company.  The 
defendants'  answer  contained  a  demurrer  to  the  second  count  of  the 
declaration,  which  was  overruled  in  the  Superior  Court;  and  the  de- 
fendants appealed  to  this  court.  The  case  was  then  tried  before 
Pitman,  J.,  and,  after  a  verdict  for  the  plaintiff,  the  defendants 
alleged  exceptions.     The  facts  appear  in  the  opinion. 

Barker,  J.  The  action  is  tort  for  deceit,  in  inducing  the  plain- 
tiff to  take  notes  of  a  corporation  by  false  and  fraudulent  repre- 
sentations, alleged  to  have  been  made  to  him  by  the  defendants, 
that  the  capital  stock  of  the  corporation,  amounting  to  $150,000, 
had  been  paid  in,  and  that  patents  for  electrical  advertising  devices, 
of  the  value  of  $149,050,  had  been  transferred  to  it. 

From  the  exceptions,  it  appears  that  the  corporation  was  or- 
ganized in  January,  1885,  under  the  laws  of  Maine,  and  engaged 
in  business  in  Massachusetts;  that  it  filed  with  the  commissioner 
of  corporations  a  certificate  containing  the  above  statements,  dated 
August  11,  1885,  as  rofiuircd  by  the  St.  of  1884,  c.  330,  §  3,^  signed 

» The  St.  of  1S84,  o.  .3.10,  Is  an  net  oonfornlng  foreign  corporations,  except  foreign 
Insurance    compank'H,    having    a    usual    place    of    business    In    this    Commonwealth. 


CHAP.   I.]  DECEIT.  87 

by  the  defendants,  with  a  jurat  stating  that  on  that  date  they  had 
severally  made  oath  that  the  certificate  was  true,  to  the  best  of  their 
knowledge  and  belief;  that  before  the  plaintiff  took  the  notes  the 
contents  of  this  certificate  had  been  communicated  to  him  by  an 
attorney  whom  he  had  employed  to  examine  the  records;  and  that 
he  relied  upon  its  statements  in  accepting  the  notes.  There  was  no 
other  evidence  of  the  making  of  the  alleged  representations. 

The  main  question,  which  is  raised  both  by  the  demurrer  to  the 
second  count  of  the  declaration  and  by  the  exceptions,  is  whether 
the  plaintiff  can  maintain  an  action  of  deceit  for  alleged  misstate- 
ments contained  in  the  certificate.  In  the  opinion  of  a  majority 
of  the  court  this  question  should  have  been  decided  adversely  to  the 
plaintiff.  The  execution  by  the  defendants  of  the  certificate  to  en- 
able the  corporation  to  file  it  under  the  St.  of  1884,  c.  330,  §  3,  was 
too  remote  from  any  design  to  influence  the  action  of  the  plaintiff 
to  make  it  the  foundation  of  an  action  of  deceit. 

To  sustain  such  an  action,  misrepresentations  must  either  have 
been  made  to  the  plaintiff  individually,  or  as  one  of  the  public,  or 
as  one  of  a  class  to  whom  they  are  in  fact  addressed,  or  have  been 
intended  to  influence  his  conduct  in  the  particular  of  which  he 
complains. 

This  certificate  was  not  communicated  by  the  defendants,  or  by 
the  corporation,  to  the  public  or  to  the  plaintiff.  It  was  filed  with 
a  State  official  for  the  definite  purpose  of  complying  with  a  require- 
ment imposed  as  a  condition  precedent  to  the  right  of  the  corpora- 
tion to  act  in  Massachusetts.  Its  design  was  not  to  procure  credit 
among  merchants,  but  to  secure  the  right  to  transact  business  in  the 
State. 

The  terms  of  the  statute  carry  no  implication  of  such  a  liability. 
Statutes  requiring  similar  statements  from  domestic  corporations 
have  been  in  force  here  since  1829,  and  whenever  it  was  intended  to 
impose  a  liability  for  false  statements  contained  in  them  there  has 
been  an  express  provision  to  that  effect;  and  a  requisite  of  the  lia- 
bility has  uniformly  been  that  the  person  to  be  held  signed  knowing 
the  statement  to  be  false.  St.  1839,  c.  53,  §  9.  Eev.  Sts.  c.  38,  §  28. 
Gen.  Sts.  c.  60,  §  30.    St.  1870,  c.  224,  §  38,  cl.  5.    Pub.  Sts.  c.  106, 


Section  3  is  as  follows  :  "  Every  such  company  before  transacting  business  in  this 
Commonwealth  shall  file  with  said  commissioner  a  copy  of  its  charter  or  certificate 
of  incorporation,  and  a  statement  of  the  amount  of  its  capital  stock,  and  the 
amount  paid  in  thereon  to  its  treasurer,  and  if  any  part  of  such  payment  has  been 
made  otherwise  than  in  money  the  statement  shall  set  forth  the  particulars  thereof, 
and  said  statement  shall  be  subscribed  and  sworn  to  by  its  president,  treasurer, 
and  by  a  majority  of  its  directors  or  officers  having  the  powers  usually  exercised 
by  directors.  All  such  companies  now  doing  business  in  this  Commonwealth  shall 
file  such  copy  and  such  statement  on  or  before  the  first  day  of  October  next,  pro 
vided  sucli  business  is  thereafter  continued.  Every  officer  of  a  corporation  which 
fails  to  comply  with  the  requirements  of  this  act.  and  every  agent  of  such  corpora- 
tion who  transacts  business  as  such  in  this  Commonwealth  shall  for  such  failure 
be  liable  to  a  fine  not  exceeding  five  hundred  dollars  ;  but  such  failure  shall  not 
affect  the  validity  of  any  contract  by  or  with  such  corporation.  .  .  ."  See  Acts  of 
1903,  ch.  437,  §  60. 


88  HUNNEWELL   V,   DUXBURY.  [CHAP.    I. 

§  60,  cl.  5.^  To  hold  that  the  St.  of  1884,  c.  330,  §  3,  imposes  upon 
those  officers  of  a  foreign  corporation  who  sign  the  certificate,  which 
is  a  condition  of  its  admission,  the  added  liability  of  an  action  of 
deceit,  is  to  read  into  the  statute  what  it  does  not  contain. 

If  such  an  action  lies,  it  might  have  been  brought  in  many  in- 
stances upon  representations  made  in  returns  required  of  domestic 
corporations,  and  yet  there  is  no  instance  of  such  an  action  in  our 
reports.  In  Fogg  v.  Pew,  10  Gray,  409,  it  is  held  that  the  mis- 
representations must  have  been  intended  and  allowed  by  those  ma- 
king them  to  operate  on  the  mind  of  the  party  induced,  and  have 
been  suffered  to  influence  him.  In  Bradley  v.  Poole,  98  Mass.  169, 
the  representations  proved  and  relied  on  were  made  personally  by  the 
defendant  to  the  plaintiff,  in  the  course  of  the  negotiation  for  the 
shares  the  price  of  which  the  plaintiff  sought  to  recover.  Felker  v. 
Standard  Yarn  Co.,  148  Mass.  236,  was  an  action  under  the  Pub. 
Sts.  c.  106,  s.  60,  to  enforce  a  liability  explicitly  declared  by  the 
statute. 

Nor  do  we  find  any  English  case  which  goes  to  the  length  necessary 
to  sustain  the  plaintiff's  action.  The  English  cases  fall  under  two 
heads:  1.  Those  of  officers,  members,  or  agents  of  corporations,  who 
have  issued  a  prospectus  or  report  addressed  to  and  circulated  among 
shareholders  or  the  public  for  the  purpose  of  inducing  them  to  take 
shares.  2.  Those  of  persons  who,  to  obtain  the  listing  of  stocks  or 
securities  upon  the  stock  exchange  in  order  that  they  may  be  more 
readily  sold  to  the  public,  have  made  representations  to  the  officials 
of  the  exchange,  which  in  due  course  have  been  communicated  to 
buyers.  Bagshaw  v.  Seymour,  32  L.  T.  81.  Bedford  v.  Bagshaw,  4 
H.  &  N.  538.  Watson  v.  Earl  of  Charlemont,  12  Q.  B.  856.  Clarke 
V.  Dickson,  6  C.  B.  (N.  S.),  453.  Jarrett  v.  Kennedy,  6  C.  B.  319. 
Campbell  v.  Fleming,  1  A.  &  E.  40.  Peek  v.  Derry,  37  Ch.  D.  541, 
and  14  App.  Cas.  337.^  Angus  v.  Clifford,  1891*  2  Ch.  449.  In 
these  cases  the  representations  were  clearly  addressed  to  the  plaintiffs 
among  others  of  the  public  or  of  a  class,  and  were  plainly  intended 
and  calculated  to  influence  their  action  in  the  specific  matter  in  which 
they  claimed  to  have  been  injured.  So,  too,  in  the  American  cases 
relied  on  to  support  the  action.  Morgan  v.  Skiddy,  62  N.  Y.  319. 
Terwilliger  v.  Great  Western  Telegraph  Co.,  59  111.  249,  Paddock  v. 
Fletcher,  42  Vt.  389.  The  numerous  cases  cited  in  the  note  to  Pasley 
V.  Freeman,^  in  2  Smith's  Lead.  Cas.  (9th  Am.  ed.),  1320,  are  of  the 
same  character. 

In  the  case  at  bar,  tlio  certificate  was  made  and  filed  for  the  definite 
purpose,  not  of  influencing  the  pnl)lic,  but  of  obtaining  from  the  State 
a  specific  right,  which  did  not  all'ect  the  validity  of  its  contracts,  but 
merely  relieved  its  agents  in  Massachusetts  of  a  penalty.    It  was  not 

«  ArtB  of  100.1.  ch.  4.'?7,  1.34. 
»  Aute,  i>.   (JO.  'Ante,  p.   31. 


CHAP.    I.]  DECEIT.  89 

addressed  to  or  intended  for  the  public,  and  was  knowTi  to  the  plain- 
tiff only  from  the  search  of  his  attorney.  It  could  not  have  been  in- 
tended or  designed  by  the  defendants  that  the  plaintiff  should  ascer- 
tain its  contents  and  be  induced  by  them  to  take  the  notes.  It  is 
not  such  a  representation,  made  by  one  to  another  with  intent  to  de- 
ceive, as  will  sustain  the  action.  Its  statements  are  in  no  fair  sense 
addressed  to  the  person  who  searches  for,  discovers,  and  acts  upon 
them,  and  cannot  fairly  be  inferred  or  found  to  have  been  made  with 
the  intent  to  deceive  him. 

This  view  of  the  law  disposes  of  the  case,  and  makes  it  unnecessary 
to  consider  the  other  questions  raised  at  the  trial. 

Demurrer  and  exceptions  sustained. 


ENFIELD    V.    COLBURN. 

Supreme  Court  of  New  Hampshire,  June,  1884.     63  N.  H.  218. 

Case.  The  declaration  alleged  that  the  defendant  falsely  and  fraud- 
ulently made  a  claim  upon  the  town  for  damages  to  his  horse  while 
travelling  on  a  highway  in  said  town,  and  falsely  stated  to  the  offi- 
cers of  the  town  that  his  horse  had  been  injured  through  the  insuffi- 
ciency of  the  highway,  and  falsely  swore  to  an  affidavit  stating  the 
particulars  of  said  injury,  which  he  filed  with  the  town-clerk  of  said 
town,  "  and  said  town,  relying  upon  said  false  and  fraudulent  repre- 
sentations, so  made  by  said  defendant,  incurred  large  expense  in  in- 
vestigating the  facts  represented  by  said  defendant,  and  found  said 
representations  to  be  false,  and  that  said  defendant's  horse  was  not 
injured  through  the  insufficiency  of  the  highway  in  said  town  as  said 
defendant  well  knew."    The  defendant  demurred. 

Carpenter,  J.  A  mere  naked  lie  —  a  falsehood  —  though  told  with 
intent  to  deceive,  upon  which  nobody  acts,  and  by  which  nobody  is 
deceived,  is  not  actionable.  The  declaration  alleges,  in  substance,  that 
the  defendant  falsely  and  fraudulently  represented  that  he  had  a 
valid  claim  against  the  plaintiffs  for  damages,  that  the  plaintiffs  re- 
lied upon  the  representations,  and  that  they  investigated  them  at  a 
large  expense  and  found  them  to  be  false.  One  or  the  other  of  the 
last  two  allegations  is  as  untruthful  as  the  representations  are  claimed 
to  be :  both  cannot  be  true.  If  the  plaintiffs  relied  upon  the  repre- 
sentations, they  did  not  investigate  them:  if  they  investigated  them, 
they  did  not  rely  upon  them.  It  is  a  perversion  of  language  to  say 
that  they  did  both.  The  averments  are  incurably  repugnant,  and 
neither  of  them  can  be  rejected  as  surplusage. 

If  the  inquiry  had  resulted  in  favor  of,  instead  of  against,  the 
validity  of  the  defendant's  claim,  and  if,  relying  upon  the  result  of 


90  rOTTLER    V.    MOSELEY.  [CHAP.   I. 

the  examination  and  not  upon  the  representations,  the  plaintiffs  had 
paid  the  demand,  they  could  maintain  no  action,  however  unfounded 
the  claim  and  however  false  and  fraudulent  the  defendant's  repre- 
sentations might  be.  He  only  who  has  trusted  in  and  acted  upon  a 
falsehood  to  his  injury  can  maintain  an  action.  It  is  upon  this  prin- 
ciple that  no  action  lies  for  false  representations  of  facts  which  are 
equally  open  to  the  observation  and  knowledge  of  both  parties. 

If  this  declaration  can  be  sustained,  a  plaintiff  who  makes  and  insti- 
tutes a  suit  upon  a  false  and  fraudulent  claim,  and  is  beaten,  must 
not  only  satisfy  the  judgment  against  him  for  costs,  but  is  also  liable 
to  an  action  on  tJie  case;  and,  generally,  one  may  recover  the  cost  of 
detecting  and  defeating  any  fraud  which  may  be  attempted  upon  him. 
There  is  no  precedent  for  such  an  action.  It  is  always  at  a  party's 
option  to  act  upon  the  faith  of  statements  made  to  him,  or  upon  his 
own  judgment  of  the  facts  after  making  full  inquiry.  If,  where  he 
does  the  latter  and  makes  a  mistake,  another  is  not  answerable  for  his 
blunder,  whatever  pains  he  may  have  taken  to  lead  him  into  it,  still 
less  should  he  be  punished  if  by  reason  of  the  inquiry  no  mistake  is 
committed.  It  is  the  damages  which  result  from  acting  upon  false 
representations  as  if  they  were  true,  and  not  the  expense  of  detecting 
their  falsity,  which  a  plaintiff  is  entitled  to  recover. 

Stanley,  J.,  did  not  sit:   the  others  concurred. 

Demurrer  sustained. 


FOTTLER    V.    MOSELEY. 

Supreme  Court  of  Massachusetts,  June,  1901.     179  Mass.  295. 

Action  for  deceit.    The  facts  are  stated  in  the  opinion. 

At  the  trial,  a  verdict  Avas  directed  for  the  defendant,  and  the 
plaintiff  alleged  exceptions. 

Hammond,  J.  The  parties  to  this  action  testified  in  flat  contra- 
diction of  each  other  on  many  of  the  material  issues,  but  the  evidence 
in  behalf  of  the  plaintiff  would  warrant  a  finding  by  the  jury,  that 
on  March  25,  1893,  the  plaintiff,  being  then  the  owner  of  certain 
shares  of  stock  in  the  Franklin  Park  Land  and  Improvement  Com- 
pany, gave  an  order  to  the  defendant,  a  broker  who  was  carrying  the 
stock  for  him  on  a  margin,  to  sell  it  at  a  price  not  less  than  $28.50 
per  share;  that  on  March  27  the  defendant,  for  the  purpose  of  in- 
ducing the  plaintiff  to  withdraw  the  order  and  refrain  from  selling, 
represented  to  the  plaintiff  that  the  sales  which  had  been  made  of 
said  stock  in  the  market  had  all  been  made  in  good  faith  and  had  been 
"actual  true  sales  tlirougliout; "  tliat  tliese  slatoments  were  made 
as  of  the  personal  knf)wl(!dg(?  of  flu;  defendant,  and  that  the  plaintiff, 
believing  them  to  Ix;  true  and  relying  u})on  them,  was  tliereby  induced 


CHAP.   I.]  DECEIT.  91 

to  and  did  cancel  his  oral  order  to  the  defendant  to  sell,  and  did  re- 
frain from  selling;  and  that  the  statements  were  not  true  as  to 
some  of  the  sales  in  the  open  market,  of  which  the  last  was  in  Decem- 
ber, 1892,  and  that  the  defendant  knew  it  at  the  time  he  made  the 
representations.  The  evidence  would  warrant  a  further  finding  that 
in  continuous  reliance  upon  such  representations  the  plaintiff  kept 
his  stock,  when  he  otherwise  would  have  sold  it,  until  the  following 
July,  when  its  market  value  depreciated  and  he  thereby  suffered  loss. 
The  defendant,  protesting  that  he  made  no  such  representation  and 
that  the  jury  would  not  be  justified  in  finding  that  he  had,  says  that 
even  upon  such  a  finding  the  plaintiff  would  have  no  case.  He  con- 
tends that  the  representation  was  not  material,  that  a  false  repre- 
sentation to  be  material  must  not  only  induce  action  but  must  be 
adequate  to  induce  it  by  offering  a  motive  sufficient  to  influence  the 
conduct  of  a  man  of  average  intelligence  and  prudence,  and  that  in 
this  case  the  representation  complained  of,  so  far  as  it  was  false,  was 
not  adequate  to  induce  action  because  the  fictitious  sales  were  so  few 
and  distant  in  time,  and  that  therefore  it  was  not  material. 

It  may  be  assumed  that  the  plaintiff  desired  to  handle  his  stock 
in  the  manner  most  advantageous  to  himself,  and  that  the  question 
whether  he  would  withdraw  his  order  to  sell  was  dependent,  some- 
what, at  least,  upon  his  view  of  the  present  or  future  market  value 
of  the  stock;  and  upon  that  question  a  man  of  ordinary  intelligence 
and  prudence  would  consider  whether  the  reported  sales  in  the  market 
were  "  true  sales  throughout "  or  were  fictitious,  and  what  was  the 
extent  of  each.  It  is  true  that  a  corporation  may  be  of  so  long  stand- 
ing and  of  such  a  nature,  and  the  number  of  shares  so  great  and  the 
daily  sales  of  the  stock  in  the  open  market  so  many  and  heavy,  that 
the  knowledge  that  a  certain  percentage  of  the  sales  reported  are  not 
actual  business  transactions  would  have  no  effect  on  the  conduct  of 
an  ordinary  man.  On  the  other  hand  a  corporation  may  be  so  small 
and  of  such  a  nature  and  have  so  slight  a  hold  on  the  public,  and  the 
number  of  its  shares  may  be  so  small  and  the  buyers  so  few,  that  the 
question  whether  certain  reported  sales  are  fictitious  may  have  a 
very  important  bearing  upon  the  action  of  such  a  man.  Upon  the 
evidence  in  this  case,  we  cannot  say,  as  matter  of  law,  that  the  repre- 
sentation so  far  as  false  was  not  material.  This  question  is  for  the 
jury,  who  are  to  consider  it  in  the  light  of  the  nature  of  the  corpora- 
tion and  its  standing  in  the  market,  and  of  other  matters,  including 
such  as  those  of  which  we  have  spoken. 

It  is  further  urged  by  the  defendant  that  one  of  the  fundamental 
principles  in  a  suit  like  this  is  that  the  representation  should  have 
been  acted  upon  by  the  complaining  party  and  to  his  injury;  that 
at  most  the  plaintiff  simply  refrained  from  action,  and  that  "  refrain- 
ing from  action  is  not  acting  upon  representation  "  within  the  mean- 
ing of  the  rule;    and  further  that  it  is  not  shown  that  the  damages. 


92  FOTTLER   V.   MOSELET.  [CHAP.    L 

if  any,  suffered  by  the  plaintiff  are  the  direct  result  of  the  deceit. 

Fraud  is  sometimes  defined  as  the  "  deception  practised  in  order 
to  induce  another  to  part  with  property  or  to  surrender  some  legal 
right,"  Cooley,  Torts  (2d  ed.)  555,  and  sometimes  as  the  deception 
which  leads  "  a  man  into  damage  by  wilfully  or  recklessly  causing 
him  to  believe  and  act  upon  a  falsehood."  Pollock,  Torts  (Webb's 
ed.)  3-18,  349.  The  second  definition  seems  to  be  more  comprehensive 
than  the  first,  (see  for  instance  Barley  v.  Walford,  9  Q.  B,  197,  and 
Butler  V.  Watkins,  13  Wall.  456),  and  while  the  authorities  establish- 
ing what  is  a  cause  of  action  for  deceit  are  to  a  large  extent  con- 
vertible with  those  which  define  the  right  to  rescind  a  contract  for 
fraud  or  misrepresentation  and  the  two  classes  of  cases  are  generally 
cited  without  any  express  discrimination,  still  discrimination  is  some- 
times needful  in  the  comparison  of  the  two  classes  of  cases.  Pollock, 
Torts,  (Webb's  ed.),  352. 

It  is  true  that  it  must  appear  that  the  fraud  should  have  been 
acted  upon.  It  is  a  little  difficult  to  see  precisely  what  is  meant  by 
the  contention  that  "  refraining  from  action  is  not  acting  upon 
representation."  If  by  refraining  from  action  it  is  meant  simply 
that  the  person  defrauded  makes  no  change  but  goes  on  as  he  has 
been  going  and  would  go  whether  the  fraud  had  been  committed  or 
not,  then  the  proposition  is  doubtless  true.  Such  a  person  has  been 
in  no  way  influenced,  nor  has  his  conduct  been  in  any  way  changed 
by  the  fraud.  He  has  not  acted  in  reliance  upon  it.  If,  however,  it 
is  meant  to  include  the  case  where  the  person  defrauded  does  not  do 
what  he  had  intended  and  started  to  do  and  would  have  done  save 
for  the  fraud  practised  upon  him,  the  proposition  cannot  be  true. 
So  far  as  respects  the  owner  of  property,  his  change  of  conduct  be- 
tween keeping  the  property  on  the  one  hand  and  selling  it  on  the 
other,  is  equally  great,  whether  the  first  intended  action  be  to  keep 
or  to  sell ;  and  if  by  reason  of  fraud  practised  upon  him  the  plaintiff 
was  induced  to  recall  his  order  to  sell,  and,  being  continuously  under 
the  influence  of  ibis  fraud,  kept  his  stock  when,  save  for  such  fraud, 
he  would  have  sold  it,  then  with  reference  to  this  property  he  acted 
upon  tlie  representation  within  the  meaning  of  the  rule  as  applicable 
to  cases  like  this.  Barley  v.  Walford,  9  Q.  B,  197.  Butler  v.  Watkins, 
13  Wall.  456. 

The  cases  of  Lamb  v.  Stone,^  11  Pick.  527,  Wellington  v.  Small,  3 
Cush,  145,  and  Bradley  v.  Fuller,  118  Mass.  239,  upon  which  the 
defendant  relies,  are  not  authorities  for  the  proposition  that  "  refrain- 
ing from  action  is  not  acting  upon  representation." 

As  to  wliether  the  loss  sufrcrcd  by  tlie  plaintitf  is  legally  attribut- 
able to  the  fraud,  much  can  be  said  in  favor  of  the  defendant,  and 
a  verdict  in  his  favor  on  this  as  well  as  on  other  material  points 
might  be  the  one  most  reasonably  to  be  expected  upon  the  evidence, 

i  Antn.   p.  :iO. 


CHAP,    I.]  DECEIT.  93 

especially  when  it  is  considered  that  during  the  years  1892  and  1893 
the  plaintiir  was  a  director  in  the  company;  but  we  cannot  decide 
the  question  as  a  matter  of  law.  If  the  fraud  operated  on  the  plain- 
tiff's mind  continuously,  up  to  the  time  of  the  depreciation  of  the 
stock  in  June,  1893,  so  that  he  kept  his  stock  wlien  otherwise  he 
would  have  sold  it,  and  such  was  the  direct,  natural  and  intended 
result,  then  we  think  the  causal  relation  between  the  fraud  and  the 
loss  is  sufficiently  made  out.    See  Reeve  v.  Dennett.  145  ]\Iass.  23,  29. 

Exceptions  sustained. 


FREEMAN"    v.    VENNER. 
Supreme  Court  of  Massachusetts,  June,  1876.     120  Mass.  424. 

Tort.  \Yrit  dated  December  22,  1873.  The  declaration  alleged 
that  on  July  16,  1873,  James  W.  Cox  and  Judah  H.  Cox  made  a 
negotiable  promissory  note  payable  to  the  plaintiff  or  order  in  the 
sum  of  $3500,  in  two  years  from  date,  secured  by  mortgage  of  land 
in  New  Hampshire;  that  on  ISTovember  21,  1873,  the  plaintiff  and  the 
defendant  entered  into  an  agreement  in  writing,  a  copy  of  which 
was  annexed,  and  which  was  in  substance  that  the  defendant  agreed 
to  sell  and  the  plaintiff  to  purchase  a  parcel  of  land  in  Boston,  and 
in  payment  therefor  to  assign  to  the  defendant  a  certain  mortgage 
held  by  him  on  land  in  New  Hampshire  for  tlie  sum  of  $3500,  the 
deeds  to  be  passed  on  December  1,  1873;  that  on  that  day  the 
plaintiff  assigned  the  mortgage  mentioned  to  the  defendant,  "  and  by 
mistake  and  inadvertence  on  his  part  and  through  the  false  and 
fraudulent  representations  of  the  defendant  he  indorsed  said  note  in 
blank,"  and  that  the  defendant,  upon  request  of  the  plaintiff,  refused 
to  allow  him  to  qualify  such  indorsement,  and  against  the  objection 
of  the  plaintiff  negotiated  the  same  to  Thomas  P.  Tenney,  a  bona  fide 
holder  for  value,  and  also  transferred  said  mortgage  to  him,  and  that 
he  is  held  to  pay  the  same.  The  answer  contained  a  general  denial, 
and  alleged  that  the  plaintiff  at  the  commencement  of  the  action  had 
paid  nothing  and  had  sustained  no  damage  by  reason  of  such  indorse- 
ment. 

At  the  trial  in  the  Superior  Court,  before  Pitman,  J.,  without  a 
jury,  it  appeared  that  at  the  time  of  indorsing  the  note,  December  1, 
1873,  the  plaintiff  also  intentionally  assigned  to  the  defendant  the 
mortgage  given  to  secure  said  note,  and,  by  the  same  assignment,  the 
note  and  the  debt  secured  by  the  mortgage ;  that,  before  commencing 
his  action,  or  at  any  time  before  said  trial,  the  plaintiff  had  made  no 
payment  on  account  or  by  reason  of  the  indorsement;  that,  before 
the  commencement  of  this  action  and  before  tlie  maturity  of  the 
note,  the  makers  thereof  had  become  bankrupts;  that  since  the  com- 
mencement a  semi-annual  instalment  of  interest  had  become  due; 


94  FEEEMAN   V.   VENNER.  [CHAP.   I. 

that  Tenney  had  caused  the  real  estate  to  be  sold  by  virtue  of  the 
power  contained  in  the  mortgage,  had  applied  a  part  of  the  proceeds 
of  the  sale  in  liquidation  of  that  interest,  and,  since  the  maturity 
of  the  note,  had  applied  the  balance  of  the  proceeds  in  part  payment 
of  the  note,  and  had  commenced  an  action  against  the  plaintiff  to 
recover  the  balance  of  said  note  (due  demand  having  been  made  and 
notice  given)  which  action  is  now  pending. 

"  Upon  this  evidence,  the  judge  found  that  from  the  agreement  of 
the  parties  the  defendant  was  not  entitled  to  have  the  personal  lia- 
bility of  the  plaintiff  as  indorser  of  the  note,  and  that  the  plaintiff 
through  inadvertence  and  ignorance  of  the  law  and  by  the  mis- 
direction of  the  defendant,  wrote  his  name  so  as  to  become  an  un- 
qualified indorser  of  said  note;  that,  as  soon  as  the  plaintiff  becam,e 
aware  of  the  obligation  he  had  assumed,  and  before  the  defendant 
had  negotiated  the  note  or  altered  his  position  in  any  way,  the 
plaintiff  demanded  that  the  defendant  should  allow  him  to  qualify 
his  indorsement  so  that  it  should  merely  transfer  the  title  according 
to  the  agreement,  that  the  defendant  refused,  and  thereupon  the 
plaintiff  forbade  him  to  negotiate  the  note;  but  the  defendant  not- 
withstanding, and  in  defiance,  immediately  negotiated  the  note  before 
maturity  to  a  bona  fide  holder  for  value." 

Upon  the  foregoing  evidence  and  findings,  the  defendant  requested 
the  judge  to  rule  that  the  plaintiff  could  not  maintain  his  action,  but, 
if  he  could,  that  he  was  entitled  to  recover  only  nominal  damages. 
The  judge  declined  so  to  rule,  and  held  that,  upon  this  evidence  and 
these  findings,  the  defendant  was  liable  for  the  conversion  of  the  note, 
and  that  the  measure  of  the  plaintiff's  damages  was  the  amount  which 
the  plaintiff  was  legally  compellable  to  pay  to  the  holder  of  the  note, 
namely,  the  face  of  the  note  and  interest,  less  the  amount  realized 
from  the  sale  under  the  mortgage,  treating  the  same  as  a  partial  pay- 
ment, and  gave  judgment  for  the  sum  of  $2465.68.  The  defendant 
alleged  exceptions. 

Colt,  J.  It  was  found  as  matter  of  fact  by  the  court  in  a  trial 
without  a  jury,  that  the  defendant  was  not,  by  the  terms  of  the  agree- 
ment, relied  on  by  tlic  phiintiff,  and  made  part  of  the  declaration, 
entitled  to  hold  the  plaintiff  liable  as  indorser  of  the  Cox  note;  and 
that  the  plaintiff  indorsed  the  same  through  inadvertence,  ignorance 
of  the  law  and  misdirection  of  the  defendant.  The  agreement,  how- 
ever, provided  for  the  assignment  of  the  plaintiff's  right  and  interest 
in  the  mortgage  given  to  secure  the  note  in  question.  The  court  ruled 
that  upon  the  evidence  the  defendant  was  liable  for  the  conversion 
of  the  note,  and  that  the  measure  of  damages  was  the  amount  which 
the  plaintiff  was  legally  liable  to  pay  the  holder  of  it;  namely,  the 
amount  due  on  the  same,  less  the  amount  realized  from  the  mortgage; 
and  judgment  was  rendered  accordingly. 

The  difTiculty  with  this  ruling  is,  that  upon  the  facts  disclosed  there 


CHAP,    I,]  DECEIT.  95 

was  no  conversion  of  the  note.  By  the  terms  of  the  agreement,  the 
defendant  was  entitled  to  an  assignment  of  the  mortgage  debt.  The 
indorsement  of  the  plaintiff  transferred  the  legal  title  in  the  note  to 
the  person  to  whom  it  legally  belonged.  The  gist  of  the  action  is 
the  fraud  of  the  defendant  in  wrongfully  obtaining  the  unrestricted 
indorsement  of  the  plaintiff,  and  afterwards,  against  his  objection, 
negotiating  the  note  to  a  holder  for  value  without  notice.  The  plain- 
tiff upon  his  own  showing  could  not  impeach  the  defendant's  title 
to  the  note  and  mortgage,  or  his  right  to  transfer  that  title  to  another. 
The  rule  of  damages  for  the  conversion  of  a  promissory  note  cannot 
be  applied  to  such  an  action.  Mercer  v.  Jones,  3  Camp.  477.  3 
Greenl.  Ev.  s.  649. 

The  further  objection  is,  that  treating  this  as  an  action  to  recover 
damages  for  an  alleged  fraud,  the  plaintiff  shows  no  damages  sus- 
tained at  the  time  his  action  was  commenced.  It  was  then  uncertain 
and  contingent  whether  he  would  ever  be  called  on  to  pay  the  note. 
It  was  payable  to  the  plaintiff  or  order  in  two  years,  and  was  dated 
in  July,  1873,  shortly  before  its  transfer  by  his  indorsement  to  the 
defendant.  The  liability  of  the  plaintiff  depended  on  the  failure 
of  the  makers  to  pay  and  the  giving  of  due  notice  to  him  as  indorser. 
No  payment  has  in  fact  ever  been  made  by  him.  If  the  holder  re- 
ceived his  pay  from  the  makers  through  the  mortgage  security  or 
otherwise,  the  plaintiff  will  have  suffered  no  actionable  wrong.  There 
will  have  been  no  concurrence  of  damage  with  fraud,  within  the  rule 
on  which  such  actions  are  founded.  And  as  there  has  been  no  in- 
vasion of  the  plaintiff's  right,  no  breach  of  promise,  and  no  inter- 
ference \yith  his  property,  there  can  be  no  recovery  of  even  nominal 
damages  in  this  action.  Pasley  v.  Freeman,  3  T.  E.  51.  2  Smith 
Lead.  Cas.  (6th  Am.  ed.)   157,  and  notes. 

Exceptions  sustained. 


96  SYKES  V.   SYKES.  [CHAP.   II. 


CHAPTER   11. 
UNFAIR   COMPETITION". 

SYKES    V.  SYKES. 
King's  Bench  of  England,  Michaelmas  Term,  1824.     3  Barn.  &  C.  541. 

Case.  The  declaration  alleged  that  the  plaintiff,  before  and  at 
the  time  of  committing  the  grievances  complained  of,  carried  on  the 
business  of  a  shot-belt  and  powder-flask  manufacturer,  and  made  and 
sold  for  profit  a  large  quantity  of  shot-belts,  powder-flasks,  &c.,  which 
he  was  accustomed  to  mark  with  the  words  "  Sykes  Patent,"  in  order 
to  denote  that  they  were  manufactured  by  him,  the  plaintiff,  and  to 
distinguish  them  from  articles  of  the  same  description  manufactured 
by  other  persons;  that  plaintiff  enjoyed  great  reputation  with  the 
public  on  account  of  the  good  quality  of  the  said  articles,  and  made 
great  gains  by  the  sale  of  them,  and  that  defendants,  knowing  the 
premises,  and  contriving,  &c.,  did  wrongfully,  knowingly,  and  fraudu- 
lently, against  the  will  and  without  the  license  and  consent  of  the 
plaintiff,  make  a  great  quantity  of  shot-belts  and  powder-flasks,  and 
cause  them  to  be  marked  with  the  words  "  Sykes  Patent,"  in  imitation 
of  the  said  mark  so  made  by  the  plaintiff  in  that  behalf  as  aforesaid, 
and  in  order  to  denote  that  the  said  shot-belts  and  powder-flasks,  &c., 
were  of  the  manufacture  of  the  plaintiff,  and  did  knowingly,  wrong- 
fully, and  deceitfully  sell,  for  their  own  lucre  and  gain,  the  said 
articles  so  made  and  marked  as  aforesaid,  as  and  for  shot-belts  and 
powder-flasks,  &c.,  of  the  manufacture  of  the  plaintiff.  Whereby 
])laintitf  was  prevented  from  selling  a  great  quantity  of  shot-belts, 
powder-flasks,  &c.,  and  greatly  injured  in  reputation;  the  articles 
80  manufactured  and  sold  by  the  defendants  being  greatly  inferior 
to  tliose  manufactured  by  the  plaintiff.     Plea,  not  guilty. 

At  the  trial  before  Bayley,  J.,  at  the  last  Yorkshire  assizes,  it  was 
proved  that  some  years  before  the  plaintiff's  father  obtained  a  patent 
for  the  manufacture  of  the  articles  in  question.  In  an  action  after- 
wards brought  for  infringing  the  same,  the  patent  was  held  to  be 
invalid  on  account  of  a  defect  in  the  specification;  but  the  patentee, 
and  afterwards  the  plaintiff,  continued  to  mark  the  articles  with  the 
words  "  Sykes  Patent,"  in  order  to  distinguish  them  as  their  manu- 
factures. The  defendants  afterwards  commenced  business,  and  manu- 
fnctiired  articles  of  the  same  sort,  but  of  an  inferior  descri])tion,  and 
sol']  thcrri  at  a  reduced  pri('(;  to  the  retail  dealers.     They  mnrkod  tliem 


ClIAP.    II.]  UNFAIR    COMPETITION.  97 

with  a  stamp  resembling  as  nearly  as  possible  that  used  by  the  plain- 
tiff, in  order  that  the  retail  dealers  might,  and  it  was  proved  that  they 
actually  did,  sell  them  again,  as  and  for  goods  manufactured  by  the 
plaintiff;  but  the  persons  who  bought  these  articles  from  the  defend- 
ants, for  the  purpose  of  so  reselling  them,  knew  by  whom  they  were 
manufactured.  It  further  appeared  that  the  plaintiff's  sales  had 
decreased  since  the  defendants  commenced  this  business. 

It  was  contended  for  the  defendants  that  the  plaintiff  could  not 
maintain  this  action,  for  that  one  of  the  defendants  being  named 
Sykes,  he  had  a  right  to  mark  his  goods  with  that  name,  and  had 
also  as  much  right  to  add  the  word  "  patent "  as  the  plaintiff,  the 
patent  granted  to  the  latter  having  been  declared  invalid.  The 
learned  judge  overruled  the  objection,  as  the  defendant  had  no  right 
so  to  mark  his  goods  as  and  for  goods  manufactured  by  the  plaintiff, 
which  is  the  allegation  in  the  declaration. 

It  was  then  urged  that  the  declaration  was  not  supported  by  the 
evidence,  for  that  it  charged  that  the  defendants  sold  the  goods  as 
and  for  goods  made  by  the  plaintiff;  whereas  the  immediate  pur- 
chasers knew  them  to  be  manufactured  by  the  defendants.  The  learned 
judge  overruled  this  objection  also,  and  left  it  to  the  jury  to  say 
whether  the  defendants  adopted  the  mark  in  question  for  the  purpose 
of  inducing  the  public  to  suppose  that  the  articles  were  not  manu- 
factured by  them  but  by  the  plaintiff;  and  they  found  a  verdict  for 
the  plaintiff.  Motion  for  new  trial  on  the  ground  that  the  facts 
proved  did  not  support  the  declaration, 

Abbott,  C.  J.  I  think  that  the  substance  of  the  declaration  was 
proved.  It  was  established  most  clearly  that  the  defendants  marked 
the  goods  manufactured  by  them  with  the  words  "  Sykes  Patent,"  in 
order  to  denote  that  they  were  of  the  genuine  manufacture  of  the 
plaintiff;  and  although  they  did  not  themselves  sell  them  as  goods 
of  the  plaintiff's  manufacture,  yet  they  sold  them  to  retail  dealers 
for  the  express  purpose  of  being  resold  as  goods  of  the  plaintiff's 
manufacture.  I  think  that  is  substantially  the  same  thing,  and  that 
v/e  ought  not  to  disturb  the  verdict.  Rule  refused. 


AMERICAN    WALTHAM    WATCH    COMPANY    v.    UNITED 
STATES  WATCH  COMPANY. 

Supreme  Court  of  Massachusetts,  March,  1899.     173  Mass.  85. 

Bill  in  equity,  filed  October  15,  1890,  and  amended  September  22, 
1898,  to  restrain  the  use  of  the  word  "  Waltham  "  on  watches  made 
by  the  defendant,  to  the  detriment  of  the  plaintiff's  business  as  a 


98  ^M.    WATCH    CO.    V.    U.    S.    WATCH    CO.  [ClIAP.    II. 

manufacturer  of  watches  in  Waltham.  Hearing  before  Knowlton,  J., 
who,  with  the  consent  of  the  parties,  reported  the  case  for  the  con- 
sideration of  the  full  court.     The  facts  appear  in  the  opinion. 

Holmes,  J.  This  is  a  bill  brouglit  to  enjoin  the  defendant  from 
advertising  its  watches  as  the  "  Waltham  Watch "  or  "  Waltham 
Watches,"  and  from  marking  its  watches  in  such  way  that  the  word 
"  Waltham  "  is  conspicuous.  The  plaintiff  was  the  first  manufacturer 
of  watches  in  Waltham,  and  had  acquired  a  great  reputation  before 
the  defendant  began  to  do  business.  It  was  found  at  the  hearing 
that  the  word  "  Waltham,"  which  originally  was  used  by  the  plaintiff 
in  a  merely  geographical  sense,  now,  by  long  use  in  connection  with 
the  plaintiff's  watches,  has  come  to  have  a  secondary  meaning  as  a 
designation  of  the  watches  which  the  public  has  become  accustomed 
to  associate  with  the  name.  This  is  recognized  by  the  defendant  so 
far  that  it  agrees  that  the  preliminary  injunction,  granted  in  1890, 
against  using  the  combined  words  "  Waltham  Watch  "  or  "  Waltham 
Watches "  in  advertising  its  watches,  shall  stand  and  shall  be  em- 
bodied in  the  final  decree. 

The  question  raised  at  the  hearing,  and  now  before  us,  is  whether 
the  defendant  shall  be  enjoined  further  against  using  the  word 
"  Waltham,"  or  "  Waltham,  Mass.,"  upon  the  plates  of  its  watches 
without  some  accompanying  statement  which  shall  distinguish  clearly 
its  watches  from  those  made  by  the  plaintiff.  The  judge  who  heard 
the  case  found  that  it  is  of  considerable  commercial  importance  to 
indicate  where  the  defendant's  business  of  manufacturing  is  carried 
on,  as  it  is  the  custom  of  watch  manufacturers  so  to  mark  their 
watches,  but  nevertheless  found  that  such  an  injunction  ought  to 
issue.  He  also  found  that  the  use  of  the  word  "Waltham,"  in  its 
geographical  sense,  upon  the  dial,  is  not  important,  and  should  be 
enjoined. 

The  defendant's  position  is  that,  whatever  its  intent  and  whatever 
the  effect  in  diverting  a  part  of  the  plaintiff's  business,  it  has  a  right 
to  put  its  name  and  address  upon  its  watches;  that  to  require  it  to 
add  words  which  will  distinguish  its  watches  from  the  plaintiff's  in 
the  mind  of  the  general  public  is  to  require  it  to  discredit  them  in 
advance;  and  that,  if  the  plaintiff  by  its  method  of  advertisement 
has  associated  the  fame  of  its  merits  with  the  city  where  it  makes  its 
wares  instead  of  with  its  own  name,  that  is  the  plaintiff's  folly,  and 
cannot  give  it  a  monopoly  of  a  geographical  name,  or  entitle  it  to 
increase  the  defendant's  burdens  in  advertising  the  place  of  its  works. 

In  cases  of  this  sort,  as  in  so  many  others,  what  ultimately  is  to 
be  worked  out  is  a  point  or  line  between  conflicting  claims,  each  of 
which  has  meritorious  grounds  and  would  be  extended  further  were 
it  not  for  the  other.  Boston  Ferrule  Co.  v.  Hills,  159  Mass.  147,  149^ 
150.  It  is  desirable  that  the  plaintiff  should  not  lose  custom  by 
reason  of  the  public  mistaking  another  manufacturer  for  it.     It  is 


CHAP.   II.]  UNFAIR  COMPETITION.  99 

desirable  that  the  defendant  should  be  free  to  manufacture  watches 
at  Waltham,  and  to  tell  the  world  that  it  does  so.  The  two  desiderata 
cannot  both  be  had  to  their  full  extent,  and  we  have  to  fix  the  boun- 
daries as  best  we  can.  On  the  one  hand,  the  defendant  must  be 
allowed  to  accomplish  its  desideratum  in  some  way,  whatever  the 
loss  to  the  plaintiff.  On  the  other,  we  think  the  cases  show  that 
the  defendant  fairly  may  be  required  to  avoid  deceiving  the  pub- 
lic to  the  plaintift''s  harm,  so  far  as  is  practicable  in  a  commercial 
sense. 

It  is  true  that  a  man  cannot  appropriate  a  geographical  name,  but 
neither  can  he  a  color,  or  any  part  of  the  English  language,  or  even 
a  proper  name  to  the  exclusion  of  others  whose  names  are  like  his. 
Yet  a  color  in  connection  with  a  sufficiently  complex  combination  of 
other  things  may  be  recognized  as  saying  so  circumstantially  that  the 
defendant's  goods  are  the  plaintiff's  as  to  pass  the  injunction  line. 
New  England  Awl  &  Needle  Co.  v.  Marlborough  Awl  &  Needle  Co. 
168  Mass.  154,  156.  So,  although  the  plaintiff  has  no  copyright  on 
the  dictionary  or  any  part  of  it,  he  can  exclude  a  defendant  from  a 
part  of  the  free  field  of  the  English  language,  even  from  the  mere 
use  of  generic  words  unqualified  and  unexplained,  when  they  would 
mislead  the  plaintiff's  customers  to  an,other  shop,  Eeddaway  v. 
Banham,  1896,  A.  C.  199.  So  the  name  of  a  person  may  become 
so  associated  with  his  goods  that  one  of  the  same  name  coming  into 
the  business  later  will  not  be  allowed  to  use  even  his  own  name  with- 
out distinguishing  his  wares.  Brinsmead  v.  Brinsmead,  13  Times,  L. 
E.  3.  Eeddaway  v.  Banhan,  1896,  A.  C.  199,  210.  See  Singer 
Manuf.  Co.  v.  June  Manuf.  Co.,  163  U.  S.  169,  201;  Allegretti  Choco- 
late Cream  Co.  v.  Keller,  85  Fed.  Eep.  643.  And  so,  we  doubt  not, 
may  a  geographical  name  acquire  a  similar  association  with  a  similar 
effect.     Montgomery  v.  Thompson,  1891,  A.  C.   271. 

Whatever  might  have  been  the  doubts  some  years  ago,  we  think 
that  now  it  is  pretty  well  settled  that  the  plaintiff  merely  on  the 
strength  of  having  been  first  in  the  field  may  put  later  comers  to  the 
trouble  of  taking  such  reasonable  precautions  as  are  commercially 
practicable  to  prevent  their  lawful  names  and  advertisements  from 
deceitfully  diverting  the  plaintiff's  custom. 

We  cannot  go  behind  the  finding  that  such  a  deceitful  diversion  is 
the  effect  and  intended  effect  of  the  marks  in  question.  We  cannot 
go  behind  the  finding  that  it  is  practicable  to  distinguish  the  defend- 
ant's watches  from  those  of  the  plaintiff,  and  that  it  ought  to  be  done. 
The  elements  of  the  precise  issue  before  us  are  the  importance  of 
indicating  the  place  of  manufacture  and  the  discrediting  effect  of 
distinguishing  words  on  the  one  side,  and  the  importance  of  prevent- 
ing the  inferences  which  the  public  will  draw  from  the  defendant's 
plates  as  they  now  are,  on  the  other.  It  is  not  possible  to  weigh  them 
against  each  other  by  abstractions  or  general  propositions.    The  ques- 


100  MARSH    V.    BILLINGS.  [CILAP.    II. 

tion  is  specific  and  concrete.     Tlie  judge  who  heard  the  evidence  has 
answered  it,  and  we  cannot  say  that  he  was  wrong. 

Decree  for  the  plaintiff. 


MARSH    V.  BILLINGS. 

Supreme  Court  of  Massachusetts,  March,  1851.     7  Cush.  322. 

This  was  an  action  of  trespass  on  the  case.  The  declaration  con- 
tained two  counts,  the  first  of  which  stated  that  the  plaintiffs,  on  the 
16th  of  January,  1849,  and  ever  since,  had  purchased  for  a  valuable 
consideration,  and  were  possessed  of,  the  sole  and  exclusive  right  and 
privilege  of  representing  and  acting  for  Paran  Stevens,  the  lessee  of 
the  hotel  or  public-house  in  Boston  known  as  the  Eevere  House,  at  the 
station  of  the  Boston  and  Worcester  Eailroad  Company  in  Boston, 
in  and  about  the  carriage  and  transportation  for  hire  of  such  passen- 
gers arriving  at  the  station  as  should  require  the  services  and  aid  of 
hackmen  and  hacks  authorized  by  Stevens  to  act  for  and  represent 
him  in  this  behalf,  to  transport  them  and  their  baggage  from  the  sta- 
tion to  the  Eevere  House,  and  of  the  exclusive  right  of  using,  wear- 
ing, and  placing  upon  their  carriages  and  servants,  stationed  at  said 
station,  the  name,  badge,  and  designation  of  "  Eevere  House ; "  and 
that,  to  enable  them  to  exercise  their  said  rights  and  privileges  bene- 
ficially, the  plaintiffs  had  been  put  to  great  outlay  and  expense,  and 
had  bought  and  maintained  two  carriages  at  a  great  expense,  to  wit, 
the  sum  of  four  thousand  dollars,  and  had  hired  and  kept  divers  serv- 
ants at  great  wages;  and,  at  the  time  of  the  committing  by  the  de- 
fendants of  the  grievances  complained  of,  were  used  and  accustomed 
to  obtain  and  transport  for  hire,  from  the  station  to  the  Eevere  House, 
a  great  number  of  such  passengers  and  their  baggage;  and  by  reason 
of  the  transportation  of  such  passengers  and  baggage  great  profits 
and  advantages  had  accrued,  and  still  ought  to  accrue,  to  the  plaintiffs. 
Yet  the  defendants,  well  knowing  the  premises,  but  contriving  and 
unjustly  intending  to  injure  the  plaintiffs  in  the  exercise  of  their  said 
business  or  occupation,  and  to  deprive  them  of  great  parts  of  their 
said  profiits  and  advantages,*  without  the  license  or  consent  of  the 
plaintiffs,  or  of  Stevens,  and  against  the  will  of  the  plaintiffs,  and 
of  Stevens,  did  unlawfully,  on  tbe  IGth  of  January,  1849,  and  on 
divers  other  days  since  that  day,  and  before  the  purchase  of  this  writ, 
keep  and  maintain,  and  caused  to  be  kept  and  maintained,  at  said 
station  a  large  number  of  carriages  and  servants,  with  the  name, 
badge,  or  designation  of  "  Eevere  House  "  marked,  placed,  or  worn 
upon  them  and  each  of  them,  in  imitation  of  and  as  the  name,  badge, 
and  designation  worn  and  used  by  the  plaintiffs  as  aforesaid,  and  in 
r)id('r  to  denote  to  such  passengers  that  said  coaches  and  servants 


CHAP.    II.]  UNFAIR   COMPETITION.  101 

were  authorized  by  Stevens  to  transport  them  and  their  baggage  from 
the  station  to  the  Eevere  House,  and  did  knowingly  and  deceitfully 
represent,  and  cause  their  said  servants  to  represent,  to  such  passen- 
gers that  said  coaches  and  servants  were  authorized  and  placed  by 
Stevens  at  the  station,  to  transport  for  hire  said  passengers  and  their 
baggage  from  the  station  to  the  Eevere  House;  by  means  of  which 
a  great  number,  to  wit,  five  hundred^  of  such  passengers  were  induced 
to  enter  the  defendants'  carriages  with  their  baggage,  and  to  desert 
and  leave  the  carriages  of  the  plaintiffs,  and  the  plaintiffs  thereby  lost 
the  profits  and  advantages  which  would  otherwise  have  accrued  to 
them  from  transporting  for  hire  said  passengers  and  their  baggage 
from  the  station  to  the  Eevere  House,  and  were  subjected  to  great 
loss  in  their  said  business  or  occupation. 

The  second  count  was  precisely  like  the  first  as  far  as  the  star  (*) 
above,  and  then  alleged  that  the  defendants  did  unlawfully,  on  the 
16th  of  January,  1849,  and  on  divers  other  days  since  that  day,  and 
before  the  purchase  of  this  writ,  interfere,  and  cause  their  servants 
to  interfere,  with  the  plaintiff's,  in  the  exercise  of  their  said  business 
or  occupation,  and  in  the  obtaining  and  transportation  by  the  plain- 
tiffs of  such  passengers  and  their  baggage  from  the  station  to  the 
Eevere  House,  insomuch  that  many  passengers,  to  wit,  five  hundred, 
who  were  then  and  there  about  to  enter  the  plaintiffs'  carriages,  were 
prevented  from  so  doing,  and  the  plaintiffs  were  thereby  prevented 
from  obtaining  and  transporting  for  hire  such  passengers  and  their 
baggage  in  such  plenty  as  they  would  otherwise  have  done,  and  from 
realizing  the  profits  and  advantages  which  ought  to  have  accrued  to 
them  in  their  said  business  and  occupation,  and  were  therein  subjected 
to  great  loss. 

At  the  trial  before  Bigelow,  J.,  in  the  Court  of  Common  Pleas,  the 
plaintiffs,  to  prove  their  case,  called  as  a  witness  Paran  Stevens,  the 
lessee  of  the  Eevere  House,  who  testified  that  on  the  first  day  of  May, 
1849,  he  made  a  verbal  agreement  with  the  plaintiffs,  by  which  they 
agreed  to  keep  coaches  at  the  station  of  the  Boston  and  Worcester  Eail- 
road  in  Boston,  to  convey  passengers  arriving  at  the  station  by  the 
"  long  trains,"  who  might  desire  to  go  to  the  Eevere  House,  and 
further  agreed  to  keep  good  horses  and  coaches,  and  to  employ  first- 
rate  drivers,  to  do  the  work  of  conveying  passengers,  to  the  acceptance 
of  the  passengers  and  of  Stevens ;  in  consideration  of  which  he  agreed 
to  employ  the  plaintiffs  to  convey  all  passengers  who  might  wish  to 
go  from  the  Eevere  House  to  the  station,  and  authorized  the  plaintiffs 
to  put  on  their  coaches  and  on  the  caps  of  their  drivers,  as  a  badge, 
the  words  "  Eevere  House."  He  further  testified  that  a  similar  agree- 
ment had  existed  between  him  and  the  defendants,  from  the  time 
when  he  first  opened  the  Eevere  House,  until  the  1st  of  May,  1849, 
when  it  was  terminated  by  him  with  the  assent  of  the  defendants, 
because  the  defendants  did  not  do  the  work  to  his  satisfaction;    and 


102  MAESH   V.    BILLINGS.  [CHAP.    II. 

tliat  the  defendants,  under  this   agreement,  had  placed   the   words 
"  Eevere  House  "  on  their  coaches  and  on  the  caps  of  their  drivers. 

It  further  appeared  in  evidence  that  after  the  1st  of  May,  1849, 
and  during  the  times  alleged  in  the  plaintiffs'  writ,  the  defendants 
continued  to  carry  the  words  "  Eevere  House  "  on  their  coaches  and  on 
the  caps  of  their  drivers;  that  their  coaches  and  drivers,  so  marked, 
were  kept  at  the  station  of  the  Boston  and  Worcester  Eailroad,  and 
on  the  arrival  of  the  "  long  trains  "  their  drivers  were  in  the  constant 
habit  of  calling  out  "  Eevere  House,"  in  loud  tones,  in  the  presence 
and  hearing  of  the  passengers  by  said  trains.  It  also  appeared  that 
some  time  in  July,  1849,  Stevens  requested  one  of  the  defendants  to 
discontinue  the  use  of  the  Words  "  Eevere  House  "  on  their  coaches 
and  on  the  caps  of  their  drivers ;  but  that  he  refused  so  to  do,  saying 
he  had  a  right  to  use  them. 

There  was  also  some  evidence  that  the  defendants  by  their  agents 
on  one  or  more  occasions  stated  to  persons  desiring  conveyance  to  the 
Eevere  House,  that  they  were  the  agents  employed  by  the  "  Eevere 
House  "  or  by  Mr.  Stevens,  to  convey  passengers,  and  that  the  plain- 
tiffs were  not,  or  words  to  that  effect,  by  means  of  which  statements 
some  passengers  were  diverted  from  the  coaches  of  the  plaintiffs, 
and  induced  to  go  in  the  coaches  of  the  defendants.  Upon  this  point, 
however,  the  evidence  was  contradictory.  One  person  in  the  employ 
of  the  defendants,  called  as  a  witness  by  the  plaintiffs,  testified  that 
on  one  occasion  he  induced  three  persons  to  leave  the  coach  of  the 
plaintiffs  and  go  in  the  defendants'  coach,  by  stating  to  them  that 
his  coach  was  the  regular  coach,  and  that  they  had  got  into  the  wrong 
coach.  The  plaintiffs  also  offered  evidence  that  the  defendants,  during 
the  time  alleged  in  the  plaintiffs'  writ,  carried  large  numbers  of  pas- 
sengers from  the  station  to  the  Eevere  House. 

The  plaintiffs,  on  the  foregoing  evidence,  contended  that  they  had 
an  exclusive  right  to  the  use  of  the  words  "  Eevere  House  "  on  their 
coaches  and  on  the  caps  of  their  drivers;  that  these  words  were  in 
the  nature  of  trade-marks,  and  that  their  action  would  lie,  on  showing 
that  the  defendants  had  used  these  words  in  the  manner  above  stated. 

But  the  judge  instructed  the  jury  that  no  person  had  the  legal 
right  to  claim  the  exclusive  privilege  of  conveying  passengers  from 
the  station  of  the  Boston  and  Worcester  Eailroad  to  the  Eevere 
House;  that  any  person,  who  saw  fit  to  engage  in  it,  had  a  right  to 
carry  on  the  business,  anrl  to  indicate,  by  suital)le  signs  on  his  coaches, 
by  badges  on  the  caps  of  his  drivers,  and  by  calling  at  the  station, 
in  the  hearing  of  passengers,  the  place  to  and  from  which  he  con- 
veyed passengers;  that  the  plaintiffs  in  this  case  could  not  recover 
damages  of  the  defendants,  merely  by  showing  that  the  defendants 
had  on  ilioir  coaches,  and  on  the  caps  of  their  drivers,  the  words, 
"  Eevere  House,"  and  that  they  had  called  out  "  Eevere  House,"  in  the 
hearing  of  passengers  in  the  station,  and  thereby  obtaining  the  con- 


CHAP.    II.]  UNFAIR   COMPETITION".  103 

veyance  of  passengers  from  the  station  to  the  Eevere  House.  But 
that  if,  on  the  whole  evidence  before  the  jury,  the  burden  of  proof 
being  on  the  plaintiffs,  the  jury  were  satisfied  that  the  plaintiffs  were 
authorized  by  Stevens  to  hold  themselves  out  as  his  agents  at  the 
station,  for  the  transportation  of  passengers  thence  to  the  Eevere 
House,  and  the  defendants  knowing  this,  by  means  of  false  repre- 
sentations that  they  were  the  agents  of  Stevens  for  this  purpose,  or 
that  the  plaintiffs  were  not,  induced  persons  to  go  by  the  coaches  of 
the  defendants,  instead  of  going  by  the  coaches  of  the  plaintiffs,  and 
that  thereby  passengers  were  actually  diverted  from  the  plaintiffs' 
coaches,  then  the  plaintiffs  might  recover  of  the  defendants  such 
damages  as  the  plaintiffs  had  shown  they  had  sustained  in  conse- 
quence of  such  false  representations,  and  the  loss  of  passengers  thereby 
occasioned. 

The  jury  returned  a  verdict  for  the  plaintiffs,  assessing  damages 
in  the  sum  of  seventy-five  cents,  and  the  plaintiffs  excepted  to  the 
instructions  of  the  judge. 

Fletcher,  J.  This  is  an  action  on  the  case,  sounding  in  tort. 
The  principle  involved  in  the  merits  of  the  case  is  one  of  much  im- 
portance, not  only  to  persons  situated  as  the  plaintiffs  are,  but  also 
to  the  public.  But  this  principle  is  by  no  means  novel  in  its  character, 
or  in  its  application  to  a  case  like  the  present.  It  is  substantially  the 
same  principle  which  has  been  repeatedly  recognized  and  acted  on  by 
courts,  in  reference  to  the  fraudulent  use  of  trade-marks,  and  regarded 
as  one  of  much  importance  in  a  mercantile  community.  Vast  num- 
bers, no  doubt,  of  the  strangers  who  are  continually  arriving  at  the 
stations  of  the  various  railroads  in  the  city  have  a  knowledge  of  the 
reputation  and  character  of  the  principal  hotels,  and  would  at  once 
trust  themselves  and  their  luggage  to  coachmen  supposed  to  have  the 
patronage  and  confidence  of  these  establishments.  Not  only  much 
wrong  might  be  done  to  individuals  situated  like  the  plaintiffs,  but 
great  fraud  and  imposition  might  be  practised  upon  strangers,  if 
coachmen  were  permitted  to  hold  themselves  out  falsely  as  being  in 
the  employment,  or  as  having  the  patronage  and  countenance,  of  the 
keepers  of  well-known  and  respectable  public-houses. 

It  was  said,  in  behalf  of  the  defendants,  that  the  lessee  of  the  Re- 
vere House  had  no  exclusive  right  to  convey  passengers  from  the 
Worcester  Railroad  to  his  house,  nor  had  he  the  exclusive  right  to  put 
upon  his  coaches  or  the  badges  of  his  servants  the  words  "  Revere 
House,"  and  could  confer  no  such  exclusive  right  on  the  plaintiffs; 
that  the  defendants,  in  common  with  all  other  citizens,  have  a  right 
to  convey  passengers  from  the  Worcester  Railroad  to  any  public-house, 
and  have  a  right  to  indicate  their  intention  so  to  do,  by  marks  on 
their  coaches  and  on  the  badges  of  their  servants. 

This  may  all  be  very  true,  but  it  does  not  reach  the  merits  of  the 
case.     The  plaintiffs  do  not  claim  the  exclusive  right  of  using  the 


104  MARSH    V.    BILLINGS.  [OHAP.    IL 

words  "  Eevere  House ; "  but  they  do  claim  the  exclusive  right  to  use 
those  words  in  a  manner  to  indicate,  and  for  the  purpose  of  indicating, 
the  fact  that  they  have  the  patronage  and  countenance  of  the  lessee 
of  that  house,  for  the  purpose  of  transporting  passengers  to  and  from 
that  house,  to  and  from  the  railroads.  The  plaintiffs  may  well  claim 
that  they  had  the  excluisve  right  to  use  the  words  "  Revere  House," 
to  indicate  the  fact  that  they  had  the  patronage  of  that  establishment ; 
because  the  evidence  shows  that  such  was  the  fact,  and  that  the  plain- 
tiffs, and  they  alone,  had  such  patronage  of  that  house,  by  a  fair  and 
express  agreement  with  the  lessee.  For  this  privilege  they  paid  an 
equivalent  in  the  obligations  into  which  they  entered.  The  defend- 
ants, no  doubt,  had  a  perfect  right  to  carry  passengers  from  the  sta- 
tion to  the  Eevere  House.  And  they  might  perhaps  use  the  words 
*'  Eevere  House,"  provided  they  did  not  use  them  under  such  circum- 
stances and  in  such  a  manner  as  to  effect  a  fraud  upon  others. 

The  defendants  have  a  perfect  right  to  carry  on  as  active  and  as 
energetic  a  competition  as  they  please,  in  the  conveyance  of  passen- 
gers to  the  Eevere  House  or  any  other  house.  The  emplo}Tuent  is 
open  to  them  as  fully  and  freely  as  to  the  plaintiffs.  They  may  ob- 
tain the  public  patronage  by  the  excellence  of  their  carriages,  the 
civility  and  attention  of  their  drivers,  or  by  their  carefulness  and 
fidelity,  or  any  other  lawful  means.  But  they  may  not  by  falsehood 
and  fraud  violate  the  rights  of  others.  The  business  is  fully  open  to 
them,  but  they  must  not  dress  themselves  in  colors,  and  adopt  and 
wear  symbols  which  belong  to  others. 

The  ground  of  action  against  the  defendants  is  not  that  they  carried 
passengers  to  the  Eevere  House,  or  that  they  had  the  words  "  Eevere 
House  "  on  the  coaches  and  on  the  caps  of  the  drivers,  merely ;  but 
that  they  falsely  and  fraudulently  held  themselves  out  as  being  in 
the  employment,  or  as  having  the  patronage  and  confidence,  of  the 
lessee  of  the  Eevere  House,  in  violation  of  the  rights  of  the  plaintiffs. 
The  jury  would  have  been  well  warranted  by  the  evidence  in  finding 
that  the  defendants  used  the  words  "  Eevere  House,"  not  for  the  pur- 
pose of  indicating  merely  that  they  carried  passengers  to  that  house, 
but  for  the  purpose  of  indicating,  and  in  a  manner  and  under  circum- 
stances calculated  and  designed  to  indicate,  that  they  had,  and  to 
hold  themselves  out  as  having,  the  patronage  of  that  establishment. 
Upon  the  evidence  in  the  case,  the  jury  should  have  been  instructed, 
that  if  they  were  satisfied  by  the  evidence  that  the  plaintiffs  had  made 
the  agreement  with  the  lessee  of  the  Eevere  House,  as  stated,  they 
had,  under  and  by  virtue  of  that  agreement,  an  exclusive  right  to  use 
tbo  words  "  Eevere  House,"  for  the  purpose  of  indicating  and  holding 
thenisclves  out  as  having  tlie  patronage  of  that  cstal)lishment  for  the 
conveyance  of  passengers;  and  that  if  the  defendants  used  those 
words,  in  the  manner  and  under  the  circumstances  stated  in  the  evi- 
dence, for  the  purpose  of  falsely  holding  themselves  out  as  having 


CHAP.    II.]  UNFAIR   COMPETITION.  105 

the  patronage  and  confidence  of  that  house,  and  in  that  way  to  induce 
passengers  to  go  in  the  defendants'  coaches,  rather  than  in  those  of 
the  plaintiffs,  that  would  be  a  fraud  on  the  plaintiffs,  and  a  violation 
of  their  rights,  for  which  this  action  would  lie,  without  proof  of  actual 
or  specific  damage;  that  if  the  jury  found  for  the  plaintiffs,  they 
would  be  entitled  to  such  damages  as  the  jury,  upon  the  whole  evi- 
dence, should  be  satisfied  they  had  sustained;  that  the  damage  would 
not  be  confined  to  the  loss  of  such  passengers  as  the  plaintiffs  could 
prove  had  actually  been  diverted  from  their  coaches  to  those  of  the 
defendants;  but  that  the  jury  would  be  justified  in  making  such  in- 
ferences, as  to  the  loss  of  passengers  and  injury  sustained  by  the 
plaintiffs,  as  they  might  think  were  warranted  by  the  whole  evidence 
in  the  case. 

Though  the  instructions,  as  given,  may  have  been  intended  to  con- 
form substantially  to  these  views,  yet,  upon  the  whole,  it  seems  to  the 
court  that  the  principles  of  the  law,  upon  which  the  rights  of  the 
parties  were  to  be  determined,  were  not  stated  with  all  that  distinct- 
ness and  accuracy  which  the  practical  importance  of  the  case  requires. 

The  principles  of  law  which  govern  this  decision  are  so  fully  settled 
by  numerous  decisions,  that  it  seems  unnecessary  to  go  into  any  par- 
ticular examination  of  authorities,  but  it  is  sufficient  merely  to  refer 
to  some  leading  cases.  Coats  v.  Holbrook,  2  Sandf.  Ch.  586;  Blofeld 
V.  Payne,  4  B.  &  Ad.  410;  Morison  v.  Salmon,  2  Man.  &  Gr.  385; 
Knott  V.  Morgan,  2  Keen,  213;  Croft  v.  Day,  7  Beavan,  84;  Rodgers 
V.  Nowill,  5  Man.,  G.  &  S.  109 ;  Bell  v.  Locke,  8  Paige,  75 ;  Stone  v. 
Carlan,  13  Law  Reporter,  360. 

New  trial  ordered. 


FULLER  V.  HUFF. 

Circuit  Court  of  Appeals  of  the  United  States,  July,  1900.     104  Fed.  141. 

The  case  is  stated  in  the  opinion. 

Shipman,  Circuit  Judge.  The  complainant,  Frank  Fuller,  a  citi- 
zen of  New  Jersey,  commenced  in  the  year  1875,  under  the  name  of 
"  Health  Food  Company,"  to  sell  in  the  city  of  New  York  cereal 
products  prepared  for  food,  and  has  continued  to  the  present  time 
in  that  business  and  in  the  use  of  the  same  name,  under  which  he  has 
extensively  advertised  his  goods  by  circulars,  and  in  newspapers  and 
magazines,  at  a  cost  of  from  $75,000  to  $100,000.  He  has  established 
agencies  in  Brooklyn,  Chicago,  Boston,  Washington,  Philadelphia, 
St.  Louis,  and  Oakland.  The  name  "Health  Food  Company"  is 
displayed  prominently  upon  the  packages  in  which  the  various  arti- 


106  FULLER   V.    HUFF.  [CHAP.   II. 

cles  are  presented  to  the  consumers.  About  50  different  articles  have 
been  thus  placed  upon  the  market.  The  business  has  become  large, 
and  the  name  is  unquestionably  valuable  to  the  complainant.  In 
October,  1876,  John  H.  Kellogg  took  charge,  and  has  continued  to  be 
in  charge,  of  the  institution  popularly  known  as  the  "  Battle  Creek 
Sanitarium,"  but  incorporated  in  pursuance  of  the  laws  of  the  state 
of  Michigan,  in  1876,  under  the  name  of  the  "  Health  Eeform  Insti- 
tute." This  corporation  is  the  owner  of  a  large  sanitarium,  having 
branch  institutions  at  various  places,  and  has  established  in  this  coun- 
try and  elsewhere  suborganizations  for  the  promotion  of  charitable 
and  missionary  work.  The  Battle  Creek  Sanitarium  recommended 
to  its  patients  particular  kinds  of  cereal  foods,  and  entered  upon  the 
business  of  manufacturing  and  selling  these  articles  under  the  name 
of  "  Sanitarium  Foods."  In  1881,  19  different  articles  were  made. 
In  1888  the  business  of  food  manufacture  was  made  a  separate  de- 
partment, under  the  name  of  "  Sanitarium  Food  Company,"  which 
advertised  itself  in  April,  1893,  as  "  Sanitarium  Health  Food  Com- 
pany." The  reason  for  this,  and  a  subsequent  change  of  name,  which 
preserved  the  words  "  Health  Food  Company,"  is  stated  by  Kellogg 
in  his  deposition  as  follows: 

"  In  April,  1893,  our  advertisement  appears  in  Good  Health,  over 
the  business  name  of  '  Sanitarium  Health  Food  Company.'  This 
name  we  were  led  to  adopt  by  the  action  of  one  of  our  old  employees, 
who,  leaving  the  institution,  set  up  in  business  in  the  same  town, 
advertising  himself  under  the  name  of  the  '  Battle  Creek  Health 
Food  Company.'  As  quite  a  large  proportion  of  our  mail  had  for 
years  been  addressed  to  us  as  the  '  Battle  Creek  Health  Food  Com- 
pany,' we  found  this  action  a  serious  annoyance,  and  objected  to  it, 
with  the  result  that  an  arbitration  was  agreed  upon,  the  result  of 
wbich  was  that  the  party  referred  to  was  required  to  change  his  name, 
which  he  did,  adopting  the  title  the  '  Battle  Creek  Bakery  Company,' 
We  then  added  the  word  '  Health '  to  our  business  announcement, 
making  it  '  Sanitarium  Health  Food  Company.'  Our  salesmen,  how- 
ever, in  introducing  our  foods,  so  constantly  made  use  of  the  term 

*  Battle  Creek  Sanitarium '  in  describing  our  foods,  to  distinguish 
between  our  institution  and  numerous  other  sanitariums,  we  finally, 
some  two  or  more  years  ago,  still  further  extended  the  business  title 
of  our  food  department  to  its  present  form,  —  the  '  Battle  Creek  Sani- 
tarium Health  Food  Company.'     Our  purpose  in  adopting  the  words 

*  Health  Food '  in  our  name  was  to  protect  ourselves  against  parties 
who  sought  to  pirate  the  extensive  business  which  we  had  built  up, 
by  assuming  a  name  similar  to  ours,  and  making  similar  goods  in  the 
same  town." 

Their  packages  and  cartons  have  the  name  "  Health  Food  Co."  in 
conspicuous  type,  prefixed  by  the  word  "  Sanitarium,"  and  in  smaller 
type  the  words  "Battle  Creek,  Michigan,"  under  the  name.     The 


CHAP.   II.]  UNFAIR  COMPETITION.  107 

packages  do  not  imitate  or  resemble  in  external  appearance  the  dress 
of  the  packages  of  the  complainant. 

In  October,  189G,  a  retail  grocers'  food  exhibition  was  held  at  the 
Grand  Central  Palace  in  New  York  City.  The  complainant  exhibited 
his  products  at  a  booth,  under  the  prominently  displayed  name, 
"  Health  Food  Company."  About  15  or  20  feet  distant  the  de- 
fendant Barton  Huff,  a  citizen  of  the  state  of  New  York,  as  agent 
of  the  Health  Reform  Institute,  exhibited  its  wares,  and  upon  its 
booth  was  a  placard  containing  the  words  "  Health  Food  Company," 
in  large  letters,  under  the  words  "  Battle  Creek  Sanitarium."  The 
complainant  remonstrated  with  Huff  against  the  use  of  "  Health 
Food  Company  "  as  an  infringement  of  the  complainant's  right,  and 
threatened  a  suit.  Huff  said  that  he  would  bring  the  representation 
to  the  attention  of  the  officers  of  the  Health  Food  Department,  but 
the  use  of  the  name  did  not  cease.  The  food  business  of  the  defendant 
under  its  last  name  is  extensively  advertised,  and,  when  the  testimony 
was  being  taken,  was  said  to  amount  to  from  $260,000  to  $300,000 
annually.  The  circuit  court  dismissed  the  bill  upon  the  ground  that 
the  defendant's  name  was  clearly  distinguishable  from  the  complain- 
ant's business  name,  and  was  not  an  unlawful  appropriation.  99  Fed. 
439. 

The  term  "  Health  Food  "  means  healthy  food,  or  health-producing 
food,  and  is  therefore  descriptive  of  quality,  and  cannot  be  a  technical 
trade-mark,  either  with  or  without  the  word  "  Company,"  any  more 
than  the  words  "  Nutritious  Wine  "  could  be  a  valid  trade-mark.  If 
a  case  against  the  defendant  exists,  it  is  one  of  unfair  competition; 
and  the  law  upon  the  subject  of  the  adoption  by  a  competitor  of 
names  or  words  descriptive  of  quality,  which  have  previously  become 
trade-names,  and  which  adoption  will  constitute  unfair  competition, 
is  correctly  stated  by  the  counsel  for  the  defendant  as  follows: 

"  When  such  a  mark,  name,  or  phrase  has  been  so  used  by  a  person 
in  connection  with  his  business  or  articles  of  merchandise  as  to  be- 
come identified  therewith,  and  indicate  to  the  public  that  such  arti- 
cles emanate  from  him,  the  law  will  prohibit  others  from  so  using 
it  as  to  lead  purchasers  to  believe  that  the  articles  they  sell  are  his,  or 
as  to  obtain  the  benefit  of  the  market  he  has  built  up  thereunder." 

The  same  statement  of  the  law  is  contained  in  the  case  of  Eedda- 
way  V.  Banham,  App.  Cas.  199,  decided  by  the  House  of  Lords  in  1896, 
in  which  it  was  held  that  "  one  person  was  not  entitled  to  pass  off 
his  goods  as  tliose  of  another  by  selling  them  under  a  name  likely 
to  deceive  purchasers,  whether  immediate  or  ultimate,  into  the  belief 
that  they  were  buying  the  goods  of  the  former,  although  the  name 
was,  in  its  primary  sense,  merely  a  true  description  of  the  goods." 
The  subject  of  the  unlawful  use  of  competitors  of  the  name  under 
which  a  rival  has  previously  presented  himself  to  the  public  and  has 
gained  a  business  reputation,  although  the  name  is  not  strictly  a 


108  FULLER   V.    HUFF.  [CllAP.    II. 

trade-mark,  and  is  either  geographical  or  descriptive  of  quality,  has 
been  frequently  of  late  before  the  courts,  which  have  demanded  a  high 
order  of  commercial  integrity,  and  have  frowned  upon  all  filching 
attempts  to  obtain  the  reputation  of  another.  Lee  v.  Haley,  5  Ch. 
App.  155;  North  Cheshire  &  M.  Brewery  Co.  v.  Manchester  Brewery 
Co.,  1899,  App.  Cas.  83;  City  of  Carlsbad  v.  Kutnow,  18  C.'C.  A. 
24,  71  Fed.  167;  American  Waltham  Watch  Co.  v.  United  States 
Watch  Co.,  173  Mass.  85;  ^  Block  v.  Distributing  Co.  (C.  C.)  95  Fed. 
978. 

The  question,  therefore,  is,  is  the  real  defendant's  use  (for  it  is 
manifest  that  the  Michigan  corporation  is  the  real  defendant)  of  the 
words  "  Health  Food  Company,"  in  connection  with  the  words  used 
as  a  prefix  and  suffix,  such  a  use  as  is  likely  to  deceive  consumers 
into  the  belief  that  they  were  buying  the  complainant's  goods.  It  is 
to  be  observed  that  the  frequent  insignia  of  an  intent  to  deceive,  viz. 
the  copy  or  the  imitation,  more  or  less  close,  of  the  dress  of  the  com- 
petitor's packages,  are  absent  in  this  case;  but  if  a  trade-name  has 
been  so  identified  with  the  business  of  a  manufacturer  as  to  inform 
the  public  that  the  name  upon  goods  means  that  they  are  the  product 
of  that  person,  and  another  subsequently  adopts  and  displays  the 
name,  it  is  not  material  that  he  has  not  also  adopted  the  particular 
dress  in  which  his  predecessor  has  presented  his  goods.  Hier  v.  Abra- 
hams, 82  K.  Y.  519.  The  complainant  had  used  the  name  for  18 
years  before  the  defendant  assumed  it,  had  acquired  an  extensive 
business  under  it,  and  had  established  agencies  for  his  goods  in  six 
or  seven  Eastern  and  Western  cities,  while  all  that  the  consumer 
knew  of  the  complainant's  goods  was  that  they  were  presented  to 
him  as  the  products  of  the  Health  Food  Company.  The  defendant 
announced  its  goods  in  1881  as  "  Sanitarium  Foods,"  advertised  them 
also  as  "  Invalid  Foods,"  and  waited  until  1893  before  they  were 
presented  as  the  products  of  the  Sanitarium  Health  Food  Company. 
The  reason  for  the  adoption  of  this  name  was  a  desire  to  forestall  its 
use  by  any  one  else,  thus  recognizing  the  benefit  from  the  name  and 
the  advantage  from  priority  in  its  use.  Three  years  after,  it  knew 
that  it  had  long  been  prominently  used  by,  and  was  the  sole  business 
name  of,  the  complainant.  The  defendant  now  so  coveted  the  name 
as  to  determine  not  to  relinquish  it,  and  continued  its  use  despite 
remonstrance.  The  benefit  to  the  corporation  was  derived  from  the 
familiarity  with  the  name  on  the  part  of  that  portion  of  the  public 
which  used  this  class  of  goods.  It  is  said,  however  (and  the  circuit 
court  yielded  to  the  defence)  that  the  name  is  presented  to  the  public 
with  such  accompanying  assertions  in  regard  to  the  manufacturer  of 
the  goods  and  the  place  of  the  manufacture  that  the  consumer  need 
not  be  deceived.  In  the  class  of  cases  in  which  a  manufacturer  is 
using  his  own  name,  or  the  name  of  another  person  which  has  become 

»  Ante.  p.   97. 


CHAP.    II.]  UNFAIR    COMPETITION.  109 

generic,  this  defence  is  of  great  value,  because  it  is  the  duty  of  the 
user  to  make  any  inevitable  harm  as  light  as  possible.  Singer  Mfg. 
Co.  V.  June  Mfg.  Co.,  163  U.  S.  169.  The  question  in  this  case  is, 
however,  whether  tlic  simple  use  of  the  name,  although  with  prolixes 
or  suffixes,  is  not  "  likely  to  deceive  purchasers."  The  history  is 
significant  in  regard  both  to  the  motive  of  the  Michigan  corporation 
in  retaining  its  occupancy  of  the  name  and  the  probable  effect  of  a 
permanent  retention.  After  it  had  presented  its  goods  to  the  public 
for  years  under  the  name  "  Sanitarium  Foods  "  and  "  Invalid  Foods," 
there  was  no  necessity  for  an  abandonment  of  the  former  names, 
under  which  it  had  confessedly  obtained  success,  and  by  which  it  was 
well  and  favorably  known  by  its  customers.  The  adherence  to  the 
new  name  to  the  extent  of  guaranteeing  productions  to  its  purchasers 
against  suits  indicates  the  pecuniary  benefit  which  was  expected  to 
ensue  from  the  adoption  of  a  name  to  which  consumers  had  long  been 
accustomed,  and  the  persistence  in  the  use  also  indicates  the  pecuniary 
injury  which  was  liable  to  come  upon  the  complainant.  The  case  is 
not  one  where  the  Michigan  corporation  must  use  to  a  certain  extent 
the  name  of  the  complainant,  and  it  is  not,  therefore,  one  of  damnum 
absque  injuria.  It  is  the  case  of  an  unnecessary  use  of  a  name  long 
previously  used  by  another  in  the  same  business,  and  in  the  recent 
decisions,  by  courts  of  last  resort,  upon  the  right  to  the  use  of  trade- 
names, although  geographical  or  descriptive  in  their  primary  mean- 
ing, great  importance  is  given  to  mere  long-continued  and  exclusive 
priority  of  use.  North  Cheshire  &  M.  Brewery  Co.  v.  Manchester 
Brewery  Co.,  supra;  American  Waltham  Watch  Co.  v.  United  States 
Watch  Co.,  supra.  It  was  not  necessary  for  the  complainant  to  at- 
tempt to  discover  whether  a  purchaser  had  been  actually  deceived, 
for  a  manifest  liability  to  deception  exists.  Taendsticksfabriks 
Akticbolagat  Vulcan  v.  Myers,  139  N.  Y.  364;  Manufacturing  Co.  v. 
Trainer,  101  U.  S.  51;  Biscuit  Co.  v.  Baker  (C.  C.)  95  Fed.  135. 
Although  the  intent  of  the  defendant's  principal  when  it  commenced 
to  use  the  name  "  Health  Food  "  may  have  been  innocent,  the  con- 
tinuance, after  it  had  learned  of  the  complainant's  prior  use,  indicates 
its  deliberate  intention  to  use  the  name  without  reference  to  the  com- 
plainant's possible  prior  rights.  Orr  t'.  Johnston,  13  Ch.  Div.  434. 
The  decree  of  the  circuit  court  is  reversed,  with  costs,  and  the  cause 
is  remanded  to  that  court  with  instructions  to  enter  a  decree  for  in- 
junction against  the  defendant  Barton  Huff  in  accordance  with  the 
prayer  of  the  bill,  with  costs. 


110  EMEY    V.   EOAXOKE,   ETC.,   CO.  [CHAP.   III. 


CULPABLE  ACCIDENT 

CHAPTER  IIL 

NEGLIGENCE. 
EMRY  V.  ROANOKE,  ETC.,  CO. 

Supreme  Court  of  North  Carolina,  September,  1892.     Ill  No.  Ca.  94. 

Action  for  negligence.    The  facts  are  stated  in  the  opinion. 

Shepherd,  J.  The  argument  before  us  was  based  upon  the  as- 
sumption that  the  defendant,  in  conducting  certain  blasting  opera- 
tions on  its  own  land,  was  guilty  of  negligence  by  reason  of  its  failure 
to  exercise  ordinary  care,  and  that  its  liability  for  the  same  can  only 
be  avoided  by  establishing  contributory  negligence  on  the  part  of  the 
plaintiffs. 

In  our  opinion,  the  true  principle  upon  which  the  case  is  to  be 
determined  lies  quite  beyond  that  discussed  by  counsel,  and  involves 
a  consideration  of  the  question,  not  whether  there  was  contributory 
negligence,  but  whether  the  defendant  was  guilty  of  any  negligence 
whatever,  for  which,  under  the  circumstances,  it  is  liable  to  the  plain- 
tiffs. 

While  there  may  be  some  shades  of  difference  in  the  various  defini- 
tions of  negligence,  all  the  authorities  agree  that  its  essential  element 
consists  in  a  breach  of  duty,  and  that  in  order  to  sustain  an  action, 
"  the  plaintiff  must  state  and  prove  facts  sufficient  to  show  what  the 
duty  is  and  that  the  defendant  owes  it  to  him."  1  Shear.  &  Red.  Neg., 
§  8 ;  Beach,  Cont.  Neg.,  6 ;  Thompson,  Neg.,  preface. 

A  legal  duty  has  been  well  defined  by  Dr.  Wharton,  as  "  That  which 
the  law  requires  to  be  done,  or  forborne  to  a  determinate  person  or  to 
the  public  at  large,  and  is  a  correlative  to  a  right  vested  in  such 
determinate  person  or  in  the  public."  Wbar.  Neg.,  §  24.  "  The  duty 
itself  arises  out  of  various  relationships  of  life,  and  varies  in  obligation 
under  different  circumstances.  In  one  case  the  duty  is  high  and  im- 
perative; in  another,  it  is  of  imperfect  obligation.  Thus  it  may  be 
dependent  on  a  mere  license  to  enter  upon  land,  or  the  bare  obligation, 
to  avoid  inflicting  a  wilful  injury  upon  a  trespasser,  while,  upon  the 
other  hand,  it  may  be  a  duty  to  care  for  the  safety  of  a  specially  in- 
vited guest,  or  of  a  passenger  for  hire."  16  Am.  &  Eng.  Enc,  412, 
and  the  numerous  cases  cited. 

Tliis  much  being  premised,  we  must  now  ascertain  what  duty,  if 


CHAP.    III.]  NEGLIGENCE.  Ill 

any,  was  imposed  by  law  upon  the  defendant  in  the  present  action, 
and  this  involves  an  inquiry  into  the  relation  of  the  parties  in  respect 
to  the  buildings,  for  the  accidental  destruction  of  which  the  action  is 
brought. 

It  is  conceded  that  the  defendant  was  the  owner  of  the  land  upon 
which  the  buildings  were  located,  and  it  appears  that,  in  January, 
1887,  a  suit  between  the  present  parties  was  settled  according  to  the 
terms  of  the  following  agreement,  to  wit :  "  That  the  said  T.  L.  Emry 
and  wife  do  further  agree  that  if  they  cannot  agree  with  said  company 
upon  rent  for  the  use  of  the  water  and  land  of  the  company,  upon 
which  the  mills  and  foundry  of  said  Emry  and  wife,  described  in  the 
complaint,  are  situated,  then,  upon  six  months  notice  from  the  said 
company,  they  will  remove  their  mills,  foundry  and  machinery  from 
the  lands  of  said  company.    This  14th  day  of  January,  1887." 

We  cannot  concur  in  the  contention  of  the  plaintiffs  that,  under 
this  agreement,  they  were  entitled  to  keep  their  buildings  upon  the 
premises,  without  the  payment  of  rent,  until  the  defendant  had  im- 
proved the  canal  so  as  to  increase  the  supply  of  water.  The  agree- 
ment contains  no  such  provision,  and  we  feel  that  we  would  be  doing 
violence  to  the  ordinary  rules  of  interpretation  by  so  extending  its 
terms  beyond  the  meaning  of  the  plain  and  unambiguous  language 
employed.  The  argument  can  derive  no  support  from  extrinsic  cir- 
cumstances, as  it  appears  that  the  plaintiffs  had  been  using  the  water 
of  the  canal  to  some  extent  by  keeping  it  cleaned  out,  and  that  shortly 
after  making  the  agreement,  they  proposed  to  continue  the  use  of  the 
same.  There  was,  therefore,  an  existing  subject  upon  which  the 
agreement  could  presently  operate,  and  it  is  with  reference  to  this,  as 
well  as  to  any  contemplated  improvement,  that  it  must  be  construed. 
If  the  actual  contract  was  such  as  is  contended,  it  is  to  be  regretted 
that  it  was  not  incorporated  into  the  written  agreement,  as  it  seems 
that  the  conduct  of  the  agent  of  the  plaintiffs  was  influenced  by  a 
reasonable  misapprehension  of  the  legal  effect  of  the  said  instru- 
ment. 

It  is  further  insisted  by  the  terms  of  the  agreement  that  it  was  the 
duty  of  defendant  to  entertain  in  good  faith  a  proposition  to  fix  the 
rental  value  of  the  water  and  land  therein  mentioned;  and  that  if  it 
refused  to  do  so,  it  had  no  right  to  require  the  removal  of  the  build- 
ings, etc.  Granting  this  to  be  a  correct  interpretation  of  the  agree- 
ment, we  are  unable  to  find  anything  in  the  testimony  which  discloses 
that  the  defendant  arbitrarily  or  in  bad  faith  declined  to  consider 
any  such  proposition  of  the  plaintiffs.  On  the  contrary,  the  plaintiffs' 
agent  (who  seems  to  have  had  full  control  and  management  of  the 
whole  matter)  explicitly  testified  that  before  the  notice  to  remove  was 
served  on  him,  the  defendant's  attorney  demanded  that  the  plaintiffs 
enter  into  a  new  contract  of  rent,  and  that  failing  to  do  so  they  should 
remove   the   buildings.      The   said   agent    further    testified   that    in 


112  EMRY    V.    ROANOKE,    ETC.,    CO.  [CHAP.    III. 

response  to  the  proposition  he  replied  as  follows :  "  I  stated  that  I 
would  go  on  as  I  had  been,  and  keep  the  canal  cleaned  out  for  the 
use  of  the  land  and  water,  but  I  could  not  pay  rent,  as  the  canal  was 
in  bad  repair  and  supplied  scarcely  any  water."  The  witness  also 
stated  that  the  defendant's  attorney  declined  to  accept  his  proposal, 
and  that  they  had  no  further  negotiations. 

Here  then  was  a  distinct  offer  to  "  enter  into  a  new  contract  for 
rent,"  and  this  offer  was  declined,  except  upon  the  terms  demanded 
by  the  plaintiffs.  We  fail  to  perceive  how  the  refusal  to  accept  these 
terms  can  be  considered  as  evidence  that  the  defendant  was  unwilling 
to  make  a  bona  fide  effort  to  agree  upon  a  reasonable  rental  value.  If, 
under  the  contract,  it  was  the  duty  of  the  defendant  to  make  a  fair 
effort  to  agree,  it  was  surely  released  from  that  obligation  after  the 
plaintiffs,  without  hearing  any  proposal  from  the  defendant,  had 
expressly  refused  to  accede  to  any  other  but  the  previously  existing 
terms.  There  having  been  a  failure  to  agree  as  to  the  rent,  the  defend- 
ant had  a  right  to  insist  upon  the  removal  of  the  buildings  upon  six 
months  notice,  as  provided  in  the  agreement,  and  it  was  not  bound 
to  entertain  any  further  propositions  on  the  part  of  the  plaintiffs. 
Accordingly,  a  notice  to  remove  the  buildings  was  given,  pursuant  to 
the  agreement,  on  the  3d  of  February,  1887;  but  notwithstanding 
this  notice  the  plaintiffs  failed  to  remove  the  same,  and  kept  them  on 
the  defendant's  land  after  they  knew  that  the  defendant  had  com- 
menced its  blasting  operations,  and  until  they  were  accidentally  des- 
troyed by  fire  in  September,  1890.  As  early  as  the  6th  of  June  of 
that  year  the  defendant  complained  of  the  plaintiffs'  failure  to  comply 
with  the  notice,  and  at  the  same  time  stated  that  as  the  land  occupied 
by  the  buildings  was  absolutely  necessary  for  its  use,  it  would  pro- 
ceed to  remove  them  unless  the  plaintiffs  did  so  in  eleven  days.  At 
the  expiration  of  that  time  the  defendant  attempted  to  remove  the 
buildings,  but  was  prevented  by  the  plaintiffs  from  doing  so  by  means 
of  a  shot-gun.  Without  pausing  to  consider  whether  the  long  and 
unreasonable  delay  to  remove  the  buildings  did  not  have  the  effect  of 
vesting  the  same  in  the  defendant  as  a  part  of  its  free-hold  (a  point 
which  was  waived  by  the  answer),  it  cannot  be  questioned,  that  in 
their  failure  to  remove  them  after  said  notice,  and  especially  in  the 
violent  prevention  of  the  defendant  from  exercising  its  right  of 
removal,  the  plaintiffs  were  trespassers  upon  the  lands  of  the  defend- 
ant. Taylor,  Landlord  and  Tenant,  §§  02  and  63.  This  status  of 
the  plaintiffs  is  in  no  way  affected  by  the  conversation  between  their 
agent  and  tbe  secretary  of  the  defendant  in  1890.  Giving  full  effect 
to  the  testimony  of  the  former,  it  amounted  to  no  more  than  a  parol 
license  to  continue  the  lower  mill  on  the  defendant's  land  in  view  of 
the  establisbment  of  an  oil  mill  at  some  indefinite  time  in  the  future, 
which  was  in  fact  never  done.  The  liccTise  was  revocable  at  tlie  elec- 
tion   of    tbe    defendant.      Kivett    v.    McKcilhnn,    90    N.    C.    100; 


CHAP.   III.]  NEGLIGENCE.  113 

McCracken  v.  McCracken,  88  N.  C.  272;  Railroad  v.  Railroad,  104 
N.  C.  658,  and  was  actually  revoked  on  the  6th  of  June,  1890,  by 
the  notice  given  on  that  day.  The  plaintiffs  had  until  the  24th  of 
September  of  that  year  (the  date  of  the  accident)  to  remove  the 
buildings,  and  not  only  failed  to  remove  them,  but,  as  we  have  seen, 
forcibly  prevented  the  defendant  from  doing  so.  It  cannot  be  seriously 
insisted  that  the  effect  of  this  conversation  was  to  revive  the  broken 
agreement  of  1887,  so  as  to  entitle  the  plaintiffs  to  another  six 
months  notice  of  removal.  Much  clearer  testimony  than  this  is  neces- 
sary to  work  a  result  so  restrictive  of  the  rights  of  a  property  owner. 
Besides,  the  alleged  agreement  was  essentially  different  from  the  old 
one,  as  it  related  to  and  was  conditioned  upon  the  establishment  of  a 
new  industry,  and  the  supply  of  water  was  to  be  furnished  "  at  the 
same  rates  as  to  others."  The  old  agreement,  as  we  have  construed  it, 
had  reference  to  the  existing  state  of  affairs,  and  contemplated  the 
present  payment  of  rent  of  some  character. 

The  plaintiffs  then  being  trespassers  upon  the  land  of  the  defendant, 
we  will  now  proceed  to  inquire  into  the  nature  of  the  duty  which  the 
latter  owed  to  the  former  in  respect  to  the  said  buildings. 

It  is  a  well  settled  principle  that  a  land-owner  has  a  right  to  the 
exclusive  use  and  enjoyment  of  his  premises,  and  that  he  incurs  no 
liability  for  injuries  caused  by  its  unsafe  condition  to  a  person  who 
was  not  at  or  near  the  place  of  the  accident  by  lawful  right,  and  when 
the  owner  has  neither  expressly  nor  by  implication  invited  him  there. 
Sweeny  v.  Railroad,  10  Allen,  368;  Bennett  v.  Railroad,  102  U.  S. 
577;  Carlton  v.  Steel  Co.,  99  Mass.  216;  Cooley  on  Torts,  605  and 
606;  Pierce  v.  Whitcomb,  46  Vt.  127;  Pittsburg  v.  Railroad,  29  Ohio 
St.  367;  1  Thompson  on  Neg.,  283  and  303. 

The  doctrine  is  thus  stated  in  Schmidt  v.  Bauer,  5  La.  An.  Repts. 
580,  and  notes:  "Unless  contrivances  are  placed  on  such  premises 
M'ith  an  actual  or  constructive  intent  to  hurt  intruders,  the  proprietor 
is  not  liable  for  injury  resulting  to  persons  by  reason  of  the  condition 
in  which  the  premises  have  been  left,  or  from  the  prosecution  of  a 
business  in  which  the  owner  had  a  right  to  engage.  Evansville,  etc., 
V.  Griffin,  100  Ind.  21;  Gillespie  v.  McGowan,  11  Pa.  144;  Gramlich 
V.  Wurst,  86  Pa.  74;  Cauley  v.  Pittsburg,  etc.,  90  Pa.  398;  McAlpine 
V.  Powell,  70  N.  Y.  126;  Hargreaves  v.  Deacon,  25  Mich.  1;  Burdick 
V.  Cheadle,  26  Ohio,  393;  Indianapolis  v.  Emmelmon,  6  West  Rept. 
569." 

The  foregoing  authorities,  and  many  others  that  could  be  cited, 
abundantly  sustain  the  proposition  "  that  a  trespasser  or  mere  licensee 
who  is  injured  by  a  dangerous  machine  or  contrivance  on  the  land  or 
premises  of  another,  cannot  recover  damages  unless  the  contrivance 
is  such  that  the  owner  may  not  lawfully  erect  or  use,  or  when  the 
injury  is  inflicted  wilfully,  wantonly  or  through  the  gross  negligence^ 

"■  Quaere. 


114  EMRY   V.   EOANOKE,    ETC.,    CO.  [CIIAP.    III. 

of  the  owner  or  occupier  of  the  premises."  Galveston  Oil  Co.  v.  Mar- 
tin, 70  Texas,  400. 

In  the  leading  case  of  Larmore  v.  Crown  Point  Iron  Co.,  101  IN".  Y. 
391,  it  was  held  that  where  one  goes  upon  the  premises  of  another, 
without  invitation,  to  obtain  employment,  and  is  there  injured  by  a 
defective  machine,  he  cannot  recover.  Andrews,  J.,  in  the  course 
of  a  well  reasoned  opinion,  uses  the  following  language :  "  The  precise 
question  is  whether  the  person,  who  goes  upon  the  land  of  another 
without  invitation  to  secure  employment  from  the  owner  of  the  land, 
is  entitled  to  indemnity  from  such  owner  for  an  injury  happening 
from  the  operation  of  a  defective  machine  on  the  premises,  not  obvi- 
ously dangerous,  which  he  passes  in  the  course  of  his  journey,  if  he 
can  show  that  the  owner  might  have  ascertained  by  the  exercise  of 
reasonable  care.  We  know  of  no  case  which  goes  to  that  extent." 
After  speaking  of  the  liability  of  a  land-owner  to  an  uninvited  person 
for  injuries  caused  by  the  setting  of  spring-guns  or  dangerous  traps 
on  his  premises,  and  also  the  duty  of  railroad  companies  in  running 
their  trains  to  use  proper  care  in  respect  to  persons  on  the  track, 
where  it  has  been  used  by  the  public  without  objection,  the  learned 
Judge  continues :  "  But  in  the  case  before  us,  there  were  no  circum- 
stances creating  a  duty  on  the  part  of  the  defendant  to  the  plaintiff 
to  keep  the  whimsey  in  repair,  and  consequently  no  obligation  to  re- 
munerate the  latter  for  his  injury."  It  has  also  been  held,  where 
a  sign  of  "  jSTo  admittance  "  was  placed  on  a  door,  that  one  who  entered 
the  room  (being  of  the  class  meant  to  be  excluded)  cannot  recover  for 
injuries  caused  by  the  negligence  in  the  management  of  the  room,  even 
though  no  attempt  was  made  to  exclude  him,  nor  any  further  warning 
given.  Zoebisch  v.  Tarbell,  10  Allen,  385 ;  Victory  v.  Baker,  67  N.  Y. 
366.  So  where  a  trespasser  entered  the  defendant's  abandoned 
freight-house  and  the  wind  blew  the  wall  down  and  injured  him. 
Larry  v.  Eailroad  Co.,  78  Ind.  323.  To  the  same  effect  is  the  case  of 
McDonald  v.  Eailroad,  35  Fed.  Eep.  38.  There,  the  defendant  cor- 
poration in  working  its  coal  mine  threw  out  a  pile  of  slack  on  its 
own  land,  the  pile  presenting  the  appearance  of  coal  ashes.  The  land 
was  not  fenced,  and  a  stranger  in  the  neigliborhood  in  passing  over 
the  slack  was  burned.  It  was  held  that  he  had  no  right  of  action 
against  the  corporation. 

In  Batchclor  v.  Fortescue,  47  J.  P.  308  (Eng.),  the  defendant  liad 
contracted  to  do  certain  work  on  a  plat  of  ground  where  buildings 
were  erected  and  excavations  were  being  made.  To  carry  out  t];c 
work,  he,  by  his  men,  worked  a  steam-winch  and  crane,  with  a  chain 
and  iron  tub  attached  thereto.  The  deceased  was  employed  by  the 
owner  of  the  ground  to  watch  the  materials  and  buildings.  He  had  no 
duty  to  take  part  in  the  excavating,  and  it  was  no  part  of  his  business 
to  stand  under  the  tub  as  it  was  raised.  While  watching  the  men 
working,  the  tub  fell  on  his  head  and  he  was  killed.    It  was  held  that 


CHAP.   III.]  NEGLIGENCE.  115 

the  defendant  was  not  liable.  "  The  deceased  was  there  to  watch 
the  material  and  buildings.  He  had  no  business  with  the  machinery, 
nor  any  duty  to  watch  the  defendant's  men  at  work.  He  was  thus 
in  a  place  where  he  had  no  right  to  be  and  was  a  mere  licensee  to 
whom  the  defendant  owed  no  duty." 

It  is  true  that  the  general  principles  we  have  enunciated  are  sub- 
ject to  some  qualifications,  under  possible  circumstances,  in  favor 
of  certain  licensees,  or  purely  technical  trespassers,  and  of  persons 
walking  on  a  railroad  track,  as  in  Clark  v.  Railroad,  109  N.  C.  430, 
and  Deans  v.  Railroad,  107  N.  C.  686.  Here,  on  the  border-land  be- 
tween the  doctrine  we  have  stated,  and  that  of  contributory  negligence, 
there  is  some  obscurity  and  conflict  in  the  authorities.  But  however 
that  may  be,  there  is  no  difficulty  in  its  application  to  a  case  like  the 
present,  where,  in  the  eyes  of  the  law,  the  plaintiffs  must  be  regarded 
as  wilful  trespassers.  The  authorities  are  practically  unanimous  in 
holding  that,  in  favor  of  trespassers  of  this  character,  the  land-owner 
owes  no  duty  to  exercise  ordinary  care  in  the  use  of  his  premises  or 
in  the  conduct  of  lawful  operations  thereon.  If  no  such  duty  existed 
in  the  foregoing  cases,  which  have  been  cited  by  way  of  illustration, 
and  in  which  the  lives  of  human  beings  were  imperiled,  it  would  be 
difficult,  indeed,  to  understand  how  it  could  be  imposed  upon  the 
defendant  in  this  action.  It  would  be  a  strange  result  if  one  who  is 
involuntarily  made  the  custodian  of  another's  property  by  the  coercive 
power  of  a  shot-gun,  should  be  held  liable  for  an  accident  to  such 
property  because  of  his  failure  to  take  all  of  the  precautions  which 
would  commend  themselves  to  a  prudent  man.  It  is  fully  settled  by 
the  authorities  above  mentioned  that  the  duty  of  a  land-owner,  under 
such  circumstances,  can  be  no  greater  than  to  abstain  from  what  is 
very  generally  called  "wanton  or  wilful  negligence."  The  defendant 
had  a  right  to  improve  its  property,  and,  in  blasting  for  that  pur- 
pose, it  was  engaged  in  a  lawful  occupation.  There  is  nothing  to 
show  that  its  servants  acted  wilfully,  wantonly  or  recklessly,  and  there 
is  no  testimony  tending  to  prove  that  after  they  discovered  the  acci- 
dent, they  could,  by  ordinary  care,  have  prevented  the  destruction 
of  the  building.  Certainly  there  is  nothing  to  indicate  the  same  in- 
difference on  their  part  as  that  shown  by  the  plaintiffs'  agent,  who, 
although  he  had  his  hands  present,  made  no  effort  to  arrest  the 
flames,  and,  indeed,  stated  that,  as  he  did  not  cause  the  fire,  he  would 
not  assist  in  putting  it  out  and  "  that  it  might  burn."  The  defendant, 
therefore,  having  been  guilty  of  no  "  wilful  or  wanton  negligence  " 
(the  abstaining  from  which  constituted  its  only  duty  under  the  cir- 
cumstances), it  must  follow  that  it  cannot  be  held  liable  for  the  acci- 
dental destruction  of  the  plaintiffs'  property. 

We  have  carefully  considered  the  other  exceptions,  and  are  of  the 
opinion  that  they  are  without  merit.     The  judgment  must  be 

Affirmed. 


116  HANKINS   V.    WATKINS.  [CHAP.    Hi. 

HANKINS  V.  WATKINS. 

Supreme  Court  of  New  York,  April,  1894.     77  Hun.  361. 

The  case  is  stated  in  the  opinion. 

There  was  a  trial  by  jury  and  verdict  for  the  plaintiff;  defendant's 
motion  for  a  new  trial  was  denied  and  the  defendant  appealed. 

Martin,  J.  This  action  was  for  negligence.  The  plaintiff  claimed, 
and  the  evidence  given  in  his  behalf  disclosed,  that  on  the  14th  day 
of  October,  1889,  he  and  his  brother  went  to  the  head  of  Cayuga  Lake, 
duck  hunting;  that  they  took  with  them  two  tame  ducks  to  be  used 
as  decoys;  that  while  they  were  preparing  to  anchor  them  as  such 
decoys  one  of  them  escaped  from  the  boat  in  which  they  were,  and 
the  plaintiff  and  his  brother  pursued  it;  that  while  doing  so  the 
defendant  shot  at  them  and  seriously  injured  the  plaintiff;  that  the 
accident  occurred  a  few  minutes  before  six  o'clock  in  the  morning; 
that  it  was  clear  and  broad  daylight,  being  about  fifteen  or  twenty 
minutes  before  sunrise;  that  between  the  place  where  the  defendant 
stood  when  he  fired  and  the  boat  in  which  the  plaintiff  and  his 
brother  were,  there  was  nothing  to  obstruct  the  defendant's  vision,  so 
that  if  he  had  looked  before  firing  he  would  have  seen  the  plaintiff, 
his  brother  and  the  boat  in  which  they  were  at  the  time.  The  evi- 
dence of  the  defendant  was  somewhat  in  conflict  with  that  of  the 
plaintiff,  and  tended  to  show  that  it  was  not  sufficiently  light  at  the 
time  to  enable  him  to  see  the  plaintiff,  and  that  his  vision  was  ob- 
structed by  the  limbs  of  the  trees  and  shrubs  that  stood  between  him 
and  the  plaintiff. 

The  question  whether  the  transaction  was  as  claimed  by  the  plain- 
tiff, or  as  claimed  by  the  defendant,  was  submitted  to  the  jury  and  it 
found  in  favor  of  the  plaintiff.  Therefore,  in  examining  the  questions 
of  the  defendant's  negligence  and  the  plaintiff's  freedom  from  con- 
tributory negligence,  we  must  regard  the  facts  proved  by  the  plaintiff 
as  the  established  facts  in  this  case.  Assuming  the  transaction  to  have 
occurred  in  the  manner  testified  to  by  the  plaintiff  and  his  witnesses, 
it  is  quite  obvious  that  both  the  question  of  the  defendant's  negligence 
and  the  question  of  tlie  plaintiff's  freedom  from  contributory  negli- 
gence were  questions  of  fact  that  were  properly  submitted  to  the  jury, 
and  that  its  findings  thereon  should  be  regarded  as  final. 

The  appellant,  however,  insists  that  the  rule  of  law  applicable  to 
this  case  is,  that  "  One  who  is  hunting  in  a  'wilderness'  is  not  bound 
to  anticipato  the  presence,  within  range  of  his  shot,  of  another  man, 
and  is  not  liable  for  an  injury  caused  unintentionally  by  him  to  a 
person  of  whose  presence  he  was  not  aware,"  and  cites  4  Wait's 
Artions  and  Dofonses,  702,  and  Bizzell  v.  Booker,  16  Ark.  308,  to 
uphold  his  insistence.     When  we  examine  the  Bizzell  case  we  not 


CHAP.    III.]  NEGLIGENCE.  117 

only  find  that  the  facts  in  that  case  were  wholly  unlike  those  in  the 
case  at  bar,  but  that  all  that  was  held  in  that  case  was,  that  where  a 
person  doing  a  lawful  act,  or  an  act  not  mischievous,  rash,  reckless  or 
foolish,  and  naturally  liable  to  result  in  injury  to  others,  he  was  not 
responsible  for  damages  resulting  therefrom  by  accident  or  casualty, 
while  he  was  in  the  exercise  of  such  care  and  caution  to  avoid  injury 
to  others  as  a  prudent  man  would  observe  under  the  circumstances 
surrounding  him.  We  also  find  that  in  that  case  it  was  expressly  held 
that  such  a  person  would  be  answerable  for  damages  which  resulted 
from  his  negligence  or  want  of  such  care  and  caution  on  his  part. 
Eeferring  to  Wait's  Actions  and  Defenses,  we  find  the  statement 
above  quoted,  and  that  the  Bizzell  case  is  the  only  authority  cited  to 
sustain  it.  We  fail  to  see  how  the  doctrine  of  the  Bizzell  case  in  any 
way  aids  the  defendant,  but,  on  the  contrary,  it  seems  to  be  an  author- 
ity in  favor  of  the  plaintiff,  as  the  court  in  that  case  expressly  indorsed 
the  doctrine  laid  down  by  Bronson,  Ch.  J.,  in  Vandenburgh  v.  Truax, 
4  Den.  464,  as  follows :  "  It  may  be  laid  down  as  a  general  rule, 
that  when  one  does  an  illegal,  or  mischievous  act  which  is  likely  to 
prove  injurious  to  others,  and  that  injury  to  third  persons  may  prob- 
ably ensue,  he  is  answerable  in  some  form  of  action  for  all  the  con- 
sequences which  may  directly  and  naturally  result  from  his  conduct. 
...  It  is  not  necessary  that  he  should  intend  to  do  the  particular 
injury  which  follows,  nor,  indeed,  any  injury  at  all."  In  Shearman 
&  Redfield  on  Negligence  (§  686)  it  is  said:  "A  very  high  degree  of 
care  is  required  from  all  persons  using  firearms  in  the  immediate 
vicinity  of  other  people,  no  matter  how  lawful  or  even  necessary  such 
use  may  be,"  and  the  cases  of  Weaver  v.  Ward,  Hob.  134;  Castle,  v. 
Duryee,  1  Abb.  Ct.  App.  Dec.  327;  Moody  v.  Ward,  13  Mass.  299; 
McClenaghan  v.  Brock,  5  Eich.  Law  (So.  Car.),  17;  Haack  v.  Fear- 
ing, 5  Eob.  528;  Moebus  v.  Becker,  46  N.  J.  Law,  41,  are  cited 
to  sustain  that  proposition.  Cooley,  in  his  work  on  Torts,  p.  705, 
says :  "  When  one  makes  use  of  loaded  weapons  he  is  responsible  only 
as  he  might  be  for  any  negligent  handling  of  dangerous  machinery, 
that  is  to  say,  for  a  care  proportioned  to  the  danger  of  injury  from 
it."  Under  the  circumstances  disclosed  by  the  evidence  in  this  case, 
and  upon  the  authorities  bearing  upon  the  question  of  the  defendant's 
liability,  we  think  there  is  no  doubt  of  the  plaintiff's  right  to  recover 
in  this  action. 

On  the  trial  the  defendant  was  asked :  "  Did  you  intend  to  shoot 
this  plaintiff?"  This  question  was  objected  to  by  the  plaintiff,  the 
objection  was  sustained  and  the  defendant  duly  excepted.  While  it 
has  been  held  that  when  the  question  of  the  party's  intent  is  one  of  the 
issues  in  an  action,  he  may  testify  that  he  had  or  did  not  have  the 
intent  charged,  still,  where  the  issue  is  not  one  of  intent,  such  evi- 
dence is  inadmissible,  as  his  intent  is  wholly  immaterial.  In  this 
case,  while  the  complaint  charges  the  defendant  with  having  wrong- 


118  HANKINS   V.    WATKINS.  [CHAP.    III. 

fully  and  negligently  caused  the  plaintiff's  injury,  there  was  no  claim 
on  the  trial  that  his  act  was  intentional,  but,  on  the  contrary,  the 
plaintiff  sought  to  recover  only  upon  the  ground  of  the  defendant's 
negligence.  This  is  shown  very  plainly  by  that  portion  of  the  charge 
of  the  learned  trial  judge,  in  which  he  said  to  the  jury :  "  It  is  not 
claimed  that  he  (defendant)  wilfully  shot  the  plaintiff.  The  plain- 
tiff's counsel  repudiates  the  idea  that  he  deliberately  and  wilfully, 
intending  to  hit  these  men,  shot  at  them,  for  they  claim  that  the  act 
was  a  lawless  act,  and  that  the  act  was  careless  and  negligent,  and  not 
deliberate  or  wilful."  Again,  the  judge  says :  "  But  this  is  not  a 
charge  of  wilful  shooting."  Thus  the  question  at  issue  between  the 
parties  on  the  trial  was  whether  the  plaintiff's  injury  was  caused  by 
the  defendant's  negligence,  and  no  question  of  his  intent  was  involved 
in  the  case.     We  find  no  error  in  this  ruling. 

The  defendant  was  also  asked :  "  Did  you  handle  your  gun  that 
morning  in  a  careful,  prudent  and  cautious  manner  ? "  This  was 
objected  to,  the  objection  sustained  and  the  defendant  excepted.  We 
think  this  exception  was  not  well  taken.  If  by  this  question  the 
defendant  sought  to  show  that  in  his  opinion  he  was  not  negligent 
in  shooting  the  plaintiff,  it  was  inadmissible,  as  that  was  a  question 
not  for  the  witness,  but  for  the  jury  to  decide.  Carpenter  v.  Eastern 
Transportation  Co.,  71  N.  Y.  574;  16  Am.  &  Eng.  Ency.  of  Law, 
463,  and  cases  cited.  If  the  defendant's  purpose  was  to  show  that 
he  handled  his  gun  with  care,  it  was  immaterial,  as  the  negligence 
charged  did  not  relate  to  the  manner  in  which  he  used  his  gun,  but 
consisted  in  his  shooting  towards  the  plaintiff  without  previously 
looking  to  see  what  was  within  the  range  of  his  gun  when  he  fired. 
The  defendant  was  also  asked :  "  Have  you  had  considerable  experi- 
ence in  handling  a  gun,  and  were  you  careful  in  handling  your  gun 
upon  the  morning  in  question  ?  "  which  was  objected  to  and  excluded. 
This  was  in  substance  the  same  as  the  previous  question,  and  the 
evidence  was  properly  rejected.  We  are  also  of  the  opinion  that  the 
court  properly  refused  to  admit  the  evidence  called  for  by  the  question 
put  to  the  witness  Brown,  whether  the  defendant  was  "  a  capable  and 
careful  hand  to  handle  a  gun." 

It  appears  that  photographs  had  been  taken  of  the  place  where  this 
injury  occurred.  The  plaintiff  was  interrogated  as  to  the  relative 
condition,  at  the  time  when  they  were  taken,  and  when  the  injury 
occurred,  of  the  trees,  water  and  other  things,  as  to  what  was  done, 
and  as  to  whether  there  was  anything  to  obstruct  the  defendant's 
view.  This  evidence  was  objected  to  by  the  defendant,  and  admitted 
under  his  exception.  As  the  photographs  were  not  admitted  in  evi- 
dence or  shown  to  the  jury,  we  are  unable  to  see  how  the  defendant 
could  possibly  have  been  injured  by  the  admission  of  this  evidence. 
It  is  quite  manifest  that  even  if  the  evidence  was  inadmissible  its 
admission  was  harmless,  and,  hence,  we  find  in  the  ruling  no  reason 
to  disturb  the  judgment. 


CHAP.    III.]  NEGLIGENCE.  119 

Having  considered  all  the  questions  presented  by  the  defendant 
in  his  brief,  and  having  found  no  exception  that  would  justify  us  in 
interfering  with  the  judgment,  it  follows  that  the  judgment  and  order 
should  be  affirmed. 

Hardin,  P.  J.,  and  Merwin,  J.,  concurred. 

Judgment  and  order  affirmed,  with  costs.^ 


MILWAUKEE,  ETC.,  E.  E.  Co.  v.  AEMS. 

Supreme  Court  of  the  United  States,  October,  1875.     91  U.  S.  489. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Iowa. 

This  action  against  the  railroad  company  to  recover  damages  for 
injuries  received  by  Mrs.  Arms,  by  reason  of  a  collision  of  a  train  of 
cars  with  another  train,  resulted  in  a  verdict  and  judgment  for  $4,000. 
The  company  sued  out  this  writ  of  error. 

The  bill  of  exceptions  discloses  this  state  of  facts:  Mrs.  Arms,  in 
October,  1870,  was  a  passenger  on  defendant's  train  of  cars,  which, 
while  running  at  a  speed  of  fourteen  or  fifteen  miles  an  hour,  col- 
lided with  another  train  moving  in  an  opposite  direction  on  the  same 
track.  The  jar  occasioned  by  the  collision  was  light,  and  more  of 
a  push  than  a  shock.  The  fronts  of  the  two  engines  were  demolished, 
and  a  new  engine  removed  the  train.  This  was  all  the  testimony 
ofl^ered  by  either  party  as  to  the  character  of  the  collision,  and  the  cause 
of  it;  but  there  was  evidence  tending  to  show  that  Mrs.  Arms  was 
thrown  from  her  seat,  and  sustained  the  injuries  of  which  she  com- 
plained. After  the  evidence  had  been  submitted  to  the  jury,  the  court 
gave  them  the  following  instruction :  "  If  you  find  that  the  accident 
was  caused  by  the  gross  negligence  of  the  defendant's  servants  con- 
trolling the  train,  you  may  give  to  the  plaintiffs  punitive  or  exemplary 
damages." 

Mr.  Justice  Davis.  The  court  doubtless  assumed,  in  its  instruc- 
tions to  the  jury,  that  the  mere  collision  of  two  railroad  trains  is,  ipso 
facto,  evidence  of  gross  negligence  on  the  part  of  the  employees  of 
the  company,  justifying  the  assessment  of  exemplary  damages;  for  a 
collision  could  not  well  occur  under  less  aggravated  circumstances,  or 
cause  slighter  injury.  Neither  train  was  thrown  from  the  track,  and 
the  effect  of  the  collision  was  only  to  demolish  the  fronts  of  the  two 
locomotives.  It  did  not  even  produce  the  "  shock "  which  usually 
results  from  a  serious  collision.  The  train  on  which  Mrs.  Arms  was 
riding  was  moving  at  a  very  moderate  rate  of  speed;  and  the  other 
train  must  have  been  nearly,  if  not  quite,  stationary.     There  was 

»  See  Bigelow  on  Torts,  8th  edition,  pp.  108,  109. 


120  MILWAUKEE,   ETC.,    R.    R.    CO.    V.   ARMS.  [CHAP.    III. 

nothing,  therefore,  save  the  fact  that  a  collision  happened,  upon  which 
to  charge  negligence  upon  the  company.  This  was  enough  to  entitle 
Mrs.  Arms  to  full  compensatory  damages ;  ^  but  the  inquiry  is,  whether 
the  jury  had  a  right  to  go  further,  and  give  exemplary  damages. 

It  is  undoubtedly  true  that  the  allowance  of  anything  more  than 
an  adequate  pecuniary  indemnity  for  a  wrong  suffered  is  a  great 
departure  from  the  principle  on  which  damages  in  civil  suits  are 
awarded.  But  although,  as  a  general  rule,  the  plaintiff  recovers  merely 
such  indemnity,  yet  the  doctrine  is  too  well  settled  now  to  be  shaken, 
that  exemplary  damages  may  in  certain  cases  be  assessed.  As  the 
question  of  intention  is  always  material  in  an  action  of  tort,  and  as 
the  circumstances  which  characterize  the  transaction  are,  therefore, 
proper  to  be  weighed  by  the  jury  in  fixing  the  compensation  of  the 
injured  party,  it  may  well  be  considered  whether  the  doctrine  of 
exemplary  damages  cannot  be  reconciled  with  the  idea,  that  com- 
pensation alone  is  the  true  measure  of  redress. 

But  jurists  have  chosen  to  place  this  doctrine  on  the  ground,  not 
that  the  sufferer  is  to  be  recompensed,  but  that  the  offender  is  to  be 
punished ;  and,  although  some  text-writers  and  courts  have  questioned 
its  soundness,  it  has  been  accepted  as  the  general  rule  in  England  and 
in  most  of  the  States  of  this  country.  1  Kedf .  on  Eailw.  576 ;  Sedg. 
on  Measure  of  Dam.,  4th  ed.,  ch.  18  and  note,  where  the  cases  are 
collected  and  reviewed.  It  has  also  received  the  sanction  of  this 
court.  Discussed  and  recognized  in  Day  v.  Woodworth,  13  How.  371, 
it  was  more  accurately  stated  in  The  Philadelphia,  Wilmington,  & 
Baltimore  E.  R.  Company  v.  Quigley,  21  How.  213.  One  of  the  errors 
assigned  was  that  the  Circuit  Court  did  not  place  any  limit  on  the 
power  of  the  jury  to  give  exemplary  damages,  if  in  their  opinion 
they  were  called  for.  Mr.  Justice  Campbell,  who  delivered  the 
opinion  of  the  court,  said,  — 

"  In  Day  v.  Woodworth  this  court  recognized  the  power  of  the  jury 
in  certain  actions  of  tort  to  assess  against  the  tort-feasor  punitive 
or  exemplary  damages.  Whenever  the  injury  complained  of  has  been 
inflicted  maliciously  or  wantonly,  and  with  circumstances  of  con- 
tumely or  indignity,  the  jury  are  not  limited  to  the  ascertainment  of 
a  simple  compensation  for  the  wrong  committed  against  the  aggrieved 
person.  But  the  malice  spoken  of  in  this  rule  is  not  merely  the  doing 
of  an  unlawful  or  injurious  act:  the  word  implies  that  the  wrong  com- 
plained of  was  conceived  in  the  spirit  of  mischief,  or  criminal  indif- 
ference to  civil  obligations." 

As  nothing  of  this  kind,  under  the  evidence,  could  be  imputed  to  the 
dftfendanis,  the  judgment  was  reversed. 

Although  this  rule  was  announced  in  an  action  for  libel,  it  is 
equally  applicable  to  suits  for  personal  injuries  received  through  the 
iiegligencc  of  others.     Redress  commensurate  to  such  injuries  should 

»  See  Benedick  v.  Potts,  post,  p.  133. 


CHAP.    III.]  NEGLIGENCE.  121 

be  afforded.  In  ascertaining  its  extent,  the  jury  may  consider  all  the 
facts  which  relate  to  the  wrongful  act  of  the  defendant,  and  its  conse- 
quences to  the  plaintiff;  but  they  are  not  at  liberty  to  go  further, 
unless  it  was  done  wilfully,  or  was  the  result  of  that  reckless  indif- 
ference to  the  rights  of  others  which  is  equivalent  to  an  intentional 
violation  of  them.  In  that  case,  the  jury  are  authorized,  for  the  sake 
of  public  example,  to  give  such  additional  damages  as  the  circum- 
stances require.  The  tort  is  aggravated  by  the  evil  motive,  and  on  this 
rests  the  rule  of  exemplary  damages. 

It  is  insisted,  however,  that,  where  there  is  "  gross  negligence,"  the 
jury  can  properly  give  exemplary  damages.  There  are  many  cases 
to  this  effect.  The  difficulty  is,  that  they  do  not  define  the  term  with 
any  accuracy ;  and,  if  it  be  made  the  criterion  by  which  to  determine 
the  liability  of  the  carrier  beyond  the  limit  of  indemnity,  it  would  seem 
that  a  precise  meaning  should  be  given  to  it.  This  the  courts  have 
been  embarrassed  in  doing,  and  this  court  has  expressed  its  disappro- 
bation of  these  attempts  to  fix  the  degree  of  negligence  by  legal  defini- 
tions. In  The  Steamboat  New  World  v.  King,  16  How.  474,  Mr. 
Justice  Curtis,  in  speaking  of  the  three  degrees  of  negligence,  says,  — 

"  It  may  be  doubted  if  these  terms  can  be  usefully  applied  in  prac- 
tice. Their  meaning  is  not  fixed,  or  capable  of  being  so.  One  degree 
thus  described  not  only  may  be  confounded  with  another,  but  it  is 
quite  impracticable  exactly  to  distinguish  them.  Their  signification 
necessarily  varies  according  to  circumstances,  to  whose  influence  the 
courts  have  been  forced  to  yield,  until  there  are  so  many  real  excep- 
tions, that  the  rules  themselves  can  scarcely  be  said  to  have  a  general 
operation.  If  the  law  furnishes  no  definition  of  the  terms  '  gross 
negligence '  or  '  ordinary  negligence '  which  can  be  applied  in  prac- 
tice, but  leaves  it  to  a  jury  to  determine  in  each  case  what  the  duty 
was,  and  what  omissions  amount  to  a  breach  of  it,  it  would  seem  that 
imperfect  and  confessedly  unsuccessful  attempts  to  define  that  duty 
had  better  be  abandoned." 

Some  of  the  highest  English  courts  have  come  to  the  conclusion 
that  there  is  no  intelligible  distinction  between  ordinary  and  gross 
negligence.  Eedf.  on  Car.,  sect.  376.  Lord  Cranworth,  in  Wilson  v. 
Brett,  11  M.  &  W.  113,  said  that  gross  negligence  is  ordinary  negli- 
gence with  a  vituperative  epithet;  and  the  Exchequer  Chamber  took 
the  same  view  of  the  subject.  Beal  v.  South  Devon  Eailway  Co.,  3  H. 
&  C.  327.  In  the  Common  Pleas,  Grill  v.  General  Iron  Screw  Collier 
Co.,  Law  Eeps.,  C.  P.  1,  1865-66,  was  heard  on  appeal.  One  of  the 
points  raised  was  the  supposed  misdirection  of  the  Lord  Chief  Justice 
who  tried  the  case,  because  he  had  made  no  distinction  between  gross 
and  ordinary  negligence.  Justice  Willes,  in  deciding  the  point,  after 
stating  his  agreement  with  the  dictum  of  Lord  Cranworth,  said,  — 

"  Confusion  has  arisen  from  regarding  '  negligence '  as  a  positive 
instead  of  a  negative  word.     It  is  really  the  absence  of  such  care  as 


122  GALBRAITH    V.    WEST    END   ST.    RAILWAY.  [CHAP.    III. 

it  was  the  duty  of  the  defendant  to  use.  '  Gross '  is  a  word  of  descrip- 
tion, and  not  of  definition;  and  it  would  have  been  only  introducing 
a  source  of  confusion  to  use  the  expression  '  gross  negligence '  instead 
of  the  equivalent,  —  a  want  of  due  care  and  skill  in  navigating  the 
vessel,  which  was  again  and  again  used  by  the  Lord  Chief  Justice  in 
his  summing  up." 

"'  Gross  negligence  "  is  a  relative  term.  It  is  doubtless  to  be  under- 
stood as  meaning  a  greater  want  of  care  than  is  implied  by  the  term 
"  ordinary  negligence ; "  but,  after  all,  it  means  the  absence  of  the 
care  that  was  necessary  under  the  circumstances.  In  this  sense  the 
collision  in  controversy  was  the  result  of  gross  negligence,  because 
the  employees  of  the  company  did  not  use  the  care  that  was  re- 
quired to  avoid  the  accident.  But  the  absence  of  this  care,  whether 
called  gross  or  ordinary  negligence,  did  not  authorize  the  jury  to 
visit  the  company  with  damages  beyond  the  limit  of  compensation 
for  the  injury  actually  inflicted.  To  do  this,  there  must  have  been 
some  wilful  misconduct,  or  that  entire  want  of  care  which  would 
raise  the  presumption  of  a  conscious  indifference  to  consequences. 
Nothing  of  this  kind  can  be  imputed  to  the  persons  in  charge  of  the 
train;  and  the  court,  therefore,  misdirected  the  jury. 

For  this  reason  the  judgment  is  reversed,  and  a  new  trial  ordered- 


GALBEAITH  v.  WEST  END  STEEET  RAILWAY. 

Supreme  Court  of  Massachusetts,  April,  1896.     165  Mass.  572. 

The  case  is  stated  in  the  opinion. 

Lathrop,  J.  This  is  an  action  of  tort,  under  the  St.  of  1886, 
c.  140,^  by  the  administratrix  of  the  estate  of  James  Galbraith,  to 
recover  damages  for  the  death  of  her  husband,  caused  by  injuries 
received  by  him  on  February  6,  1894,  while  attempting  to  cross  the 
tracks  of  the  defendant's  railway,  on  Main  Street  in  Cambridge. 
Just  before  the  accident,  the  intestate  was  driving  along  First  Street 
in  his  cart.  lie  drove  out  of  First  Street,  which  does  not  cross  Main 
Street,  but,  for  the  purpose  of  getting  on  the  right  liand  side  of 
Main  Street,  he  proceeded  straight  ahead  to  cross  Main  Street. 

In  the  Superior  Court,  the  jury  returned  a  verdict  for  the  de- 
fendant, and  the  case  comes  before  us  on  exceptions  taken  by  the 
plaintiff  to  the  refusal  of  the  presiding  judge  to  give  certain  re- 
quests for  instructions,  and  there  are  also  exceptions  to  certain 
portions  of  the  charge.  The  judge  gave  the  first  and  eighth  re- 
quests for  instructions,  and  refused  to  give  the  second,  third,  fourth, 
fifth,  sixtli  and  sovontli. 

»See  Acts  of  1007,  oh.   302. 


CHAP.    III.]  NEGLIGENCE.  123 

The  second  request  was  properly  refused.  The  plaintiff,  in  his 
argument,  has  assumed  that  this  request  placed  the  parties  in  a 
condition  where  the  intestate  was  on  the  track,  in  the  act  of  cross- 
ing; but  this  is  not  stated  in  the  request,  and  in  fact  the  terms  of 
the  request  show  that  it  was  intended  to  apply  to  a  time  before  the 
intestate  got  upon  the  track.  There  was  conflicting  evidence  in  the 
case  as  to  the  speed  with  which  the  electric  car  was  coming,  and  as 
to  what  was  done  By  the  motorman,  and  the  jury  were  fully  in- 
structed upon  this  branch  of  the  case. 

The  third  request  was  properly  refused.  It  was  incumbent  upon 
the  plaintiff,  under  the  St.  of  1886,  c.  140,  to  show  that  her  intestate 
was  in  the  exercise  of  "  due  diligence."  While  the  intestate  had  a 
right  to  cross  the  street,  the  electric  car  had  also  a  right  to  proceed 
on  its  course;  but  both  were  bound  to  use  proper  care  to  avoid  a 
collision.  Driscoll  v.  West  End  Street  Eailway,  159  Mass.  142. 
Glazebrook  v.  West  End  Street  Eailway,  160  Mass.  239.  The  de- 
fendant corporation  is  not  liable  for  the  act  of  the  motorman,  un- 
less he  was  either  unfit  or  there  was  gross  negligence  or  carelessness 
on  his  part.  There  was  no  evidence  that  the  motorman  was  unfit, 
and  it  was  a  question  for  the  jury  whether  the  intestate  exercised  due 
diligence,  and  whether  the  motorman  was  grossly  negligent  or  care- 
less. 

The  fourth  request  was  rightly  refused,  and  the  law  on  this  point 
was  correctly  stated  in  the  instructions  given  to  the  jury. 

The  fifth,  sixth  and  seventh  requests  relate  to  the  term  "  gross 
negligence."  The  plaintiff  contends  that  the  word  "  gross "  has  no 
more  effect  than  the  word  "  due  "  or  "  ordinary."  But  while  this 
view  has  been  adopted  in  some  jurisdictions,  it  never  has  been  the 
law  here.  The  term  "  gross  negligence  "  means  something  more  than 
a  want  of  ordinary  care.  It  is  used  not  only  in  the  St.  of  1886, 
c.  140,  but  also  in  the  Pub.  Sts.  c.  73,  §6  i ;  c.  112,  §212  ^',  c.  202,  §34.^ 
See  Copley  v.  New  Haven  and  Northampton  Co.,  136  Mass.  6;  Deb- 
bins  V.  Old  Colony  Railroad,  154  Mass.  402,  404;  Sullivan  v.  New 
York,  New  Haven,  &  Hartford  Railroad,  154  Mass.  524;  Manley  v. 
Boston  &  Maine  Railroad,  159  Mass.  493;  Mullen  v.  Springfield 
Street  Railway,  164  Mass.  450. 

The  remaining  exceptions  relate  to  specific  portions  of  the  charge. 
The  plaintiff  contends  that  the  jury  might  have  been  misled  by  what 
was  said  in  regard  to  railroads  and  steam  cars.  But  we  do  not  under- 
stand that  the  judge  intended  to  instruct  the  jury  that  electric  cars 
might  run  at  the  same  rate  of  speed  as  cars  on  a  road  operated  by 
steam.  See  Doyle  v.  West  End  Street  Railway,  161  Mass.  533.  The 
jury  were  carefully  instructed  that  tbey  were  to  inquire  whether  this 
car,  at  and  before  the  time  of  the  collision,  was  moving  at  an  excessive 

1  Rev.  Laws,  ch.  70,  §  6. 

2  Rev.   Laws,  ch.   Ill,  §267;   Act  of  1807,  ch.   392. 

3  Kev.  Laws,  ch.  207,  §  30. 


124  PATTON    V.    TEXAS,    ETC.,    RAILWAY    CO.  [OHAP.    III. 

rate  of  speed,  in  view  of  the  situation;  and  they  were  told  to  take 
into  consideration  the  character  of  the  street,  whether  there  were 
dwellings  along  the  line  of  it,  whether  other  streets  crossed  Main 
Street  or  came  into  it;  to  determine  upon  all  the  evidence  what  the 
rate  of  speed  was,  and  whether  it  was  an  excessive  rate  of  speed,  and 
whether  the  motorman  was  or  was  not  in  fault  in  not  checking  the 
speed  of  his  car;  by  which  we  presume  the  judge  meant  in  not  check- 
ing it  sooner,  for  there  is  no  doubt  that  it  was  checked  to  some  extent. 

The  last  exception  relates  to  what  was  said  as  to  the  right  of  the 
intestate  to  cross  Main  Street.  We  have  already  stated,  in  consider- 
ing the  third  request  for  instructions,  that  this  right  was  not  abso- 
lute; and  we  see  no  objection  to  that  portion  of  the  charge  which 
left  to  the  jury  the  question  whether  the  intestate  was  in  the  exer- 
cise of  reasonable  care  in  not  turning  to  the  left  as  soon  as  he  reached 
Main  Street,  rather  than  to  attempt  to  cross  the  tracks  when  a  car 
was  coming.  It  was  correctly  said  that  "  a  man  has  the  right,  under 
the  law  in  this  Commonwealth,  to  drive  upon  either  side  of  the  street, 
or  any  part  of  the  street,  excepting  only  that,  in  case  of  vehicles  meet- 
ing, when  a  man  who  is  driving  meets  a  carriage  going  in  the  same 
direction  or  going  in  the  other  direction,  then  the  law  provides  what 
he  shall  do ; "  ^  and  also  in  what  follows  this. 

We  are,  therefore,  of  opinion  that  the  plaintiff  has  shown  no  ground 
of  objection,  and  that  the  exceptions  must  be 

Overruled. 


PATTON"  V.  TEXAS,  ETC.,  EAILWAY  COMPANY. 

Supreme  Court  of  the  United  States,  October,  1900.     179  U.  S.  658. 

Plaintiff  in  error,  plaintiff  below,  brought  his  action  against  the 
defendant  to  recover  for  injuries  sustained  while  in  its  employ  as 
fireman.  A  judgment  in  his  favor  was  reversed  on  April  10,  1894, 
by  the  Circuit  Court  of  Appeals.  23  U.  S.  App.  319 ;  9  C.  C.  A.  487. 
On  a  second  trial  in  the  Circuit  Court  the  judge  directed  a  verdict 
for  the  defendant,  upon  which  judgment  was  rendered.  This  judg- 
ment was  affirmed  by  the  Circuit  Court  of  Appeals,  37  C.  C.  A.  56, 
and  thereupon  the  case  was  bronglit  here  on  error. 

The  facts  were  that  plaintiff  was  a  fireman  on  a  passenger  train 
of  the  defendant,  running  from  El  Paso  to  Toyah  and  return.  Some 
three  or  four  hours  after  one  of  those  trips  had  been  made  and  while 
the  engine  of  which  he  was  fireman  was  being  moved  in  tlic  railroad 
yards  at  El  Paso,  plaintiff  attempted  to  step  off  the  engine,  and  in 
doing  so  the  step  turned  and  he  fell  so  far  imder  the  engine  that  the 
wheels  passed  over  his  right  foot,  crushing  it  so  that  amputation 

»  HfV.    I.awH,   eh.    ."34. 


CHAP.   III.]  NEGLIGENCE.  125 

became  necessary.  Plaintiff  alleged  that  the  step  turned  because  the 
nut  which  held  it  was  not  securely  fastened;  that  the  omission  to 
have  it  so  fastened  was  negligence  on  the  part  of  the  company,  for 
which  it  was  liable. 

Mr.  Justice  Brewer.  The  plaintiff's  contention  is  that  the  trial 
court  erred  in  directing  a  verdict  for  the  defendant  and  in  failing  to 
leave  the  question  of  negligence  to  the  jury. 

That  there  are  times  when  it  is  proper  for  a  court  to  direct  a  ver- 
dict is  clear.  "  It  is  well  settled  that  the  court  may  withdraw  a  case 
from  them  altogether  and  direct  a  verdict  for  the  plaintiff  or  the 
defendant,  as  the  one  or  the  other  may  be  proper,  where  the  evidence 
is  undisputed,  or  is  of  such  conclusive  character  that  the  court,  in  the 
exercise  of  a  sound  judicial  discretion,  would  be  compelled  to  set 
aside  a  verdict  returned  in  opposition  to  it.  Phoenix  Ins.  Co.  v. 
Doster,  106  U.  S.  30,  32 ;  Griggs  v.  Houston,  104  U.  S.  553 ;  Eandall 
V.  Baltimore  &  Ohio  Eailroad,  109  U.  S.  478,  482 ;  Anderson  County 
Commissioners  v.  Beal,  113  U.  S.  227,  241 ;  Schofield  v.  Chicago  & 
St.  Paul  Eailway  Co.,  114  U.  S.  615,  618;"  Delaware  &c.  Eailroad  v. 
Converse,  139  IT.  S.  469,  472.  See  also  Aerkfetz  v.  Humphreys,  145 
U.  S.  418;  Elliott  v.  Chicago,  Milwaukee  &c.  Eailway,^  150  U.  S. 
245. 

It  is  undoubtedly  true  that  cases  are  not  to  be  lightly  taken  from 
the  jury;  that  jurors  are  the  recognized  triers  of  questions  of  fact, 
and  that  ordinarily  negligence  is  so  far  a  question  of  fact  as  to  be 
properly  submitted  to  and  determined  by  them.  Eichmond  &  Dan- 
ville Eailroad  v.  Powers,  149  IT.  S.  43. 

Hence  it  is  that  seldom  an  appellate  court  reverses  the  action  of 
a  trial  court  in  declining  to  give  a  peremptory  instruction  for  a  ver- 
dict one  way  or  the  other.  At  the  same  time,  the  judge  is  primarily 
responsible  for  the  just  outcome  of  the  trial.  He  is  not  a  mere  moder- 
ator of  a  town  meeting,  submitting  questions  to  the  jury  for  deter- 
mination, nor  simply  ruling  on  the  admissibility  of  testimony,  but 
one  who  in  our  jurisprudence  stands  charged  with  full  responsibility. 
He  has  the  same  opportunity  that  jurors  have  for  seeing  the  wit- 
nesses, for  noting  all  those  matters  in  a  trial  not  capable  of  record, 
and  when  in  his  deliberate  opinion  there  is  no  excuse  for  a  verdict 
save  in  favor  of  one  party,  and  he  so  rules  by  instructions  to  that 
effect,  an  appellate  court  will  pay  large  respect  to  his  judgment.  And 
if  such  judgment  is  approved  by  the  proper  appellate  court,  this  court, 
when  called  upon  to  review  the  proceedings  of  both  courts,  will  right- 
fully be  much  influenced  by  their  concurrent  opinions. 

While  it  would  needlessly  prolong  this  opinion  to  quote  all  the 
testimony,  it  is  proper  that  its  salient  features  should  be  noticed.  The 
single  negligence  charged  is  in  the  failure  to  have  the  engine  step 
securely  fastened.    That  step,  a  shovel-shaped  piece  of  iron,  is  firmly 

iPoBt,  p.   129. 


126  PATTON    V.    TEXAS,    ETC.,   RAILWAY    CO.  [CHAP.    III. 

fixed  to  a  rod  of  iron  about  an  inch  in  diameter  and  eighteen  inches 
in  length,  which  passes  up  through  the  iron  casting  at  the  rear  of 
the  engine,  about  six  or  eight  inches  thick.  A  shoulder  to  this  rod 
fits  underneath  the  casting  and  the  part  passing  through  above  has 
threads  on  the  upper  end  upon  which  a  nut  is  screwed  firmly  down 
on  the  casting,  fastening  the  rod  so  that  it  will  not  move.  That  the 
step,  rod  and  nut  were  in  themselves  all  that  could  be  required  is  not 
disputed.  That  the  nut  was  properly  screwed  on  at  El  Paso,  before 
the  engine  started  on  its  trip,  is  shown ;  the  plaintiff,  who  assisted 
there,  testifying  to  the  fact.  The  engineer  testified  that  he  used  the 
step  both  on  the  trip  to  Toyah  and  the  return  trip  to  El  Paso  and 
found  it  secure,  and  there  is  nothing  to  contradict  this  evidence.  The 
engineer  in  his  report  of  needed  work  both  at  Toyah  and  on  his  re- 
turn at  El  Paso  did  not  mention  the  step.  He  certainly  supposed 
it  secure.  Competent  inspectors  were  provided  by  the  company  both 
at  El  Paso  and  Toyah,  and  neither  of  them  detected  any  failure  in 
the  secure  fastening  of  the  step  by  the  nut.  All  of  the  witnesses 
except  the  superintendent  -and  foreman  of  defendant  testified  that  if 
the  nut  had  been  securely  fastened  at  El  Paso  it  would  not  have 
worked  loose  in  making  the  trip  from  El  Paso  to  Toyah  and  return 
by  the  ordinary  jar  and  running  of  the  engine;  that  it  might  be 
loosened  by  the  step  striking  something.  The  superintendent  and 
foreman  testified  from  an  experience  of  twenty  years  with  engines 
that  it  might  work  loose  on  such  trip,  but  that  it  was  impossible  to 
tell  whether  it  would  or  not. 

It  was  the  duty  of  the  fireman  to  clean  the  cab  and  all  that  portion 
of  the  engine  above  the  running  board,  and  to  keep  the  oil  cans  and 
lubricators  filled  with  oil.  It  was  not  necessary  for  him  to  attend  to 
this  work  until  eight  hours  after  the  engine  arrived  at  El  Paso,  though 
it  was  more  convenient  to  do  so  while  the  engine  was  hot  and  the  oil 
warm,  as  it  would  take  less  time  than  when  the  engine  was  cooled  off. 
After  the  engine  reached  El  Paso  the  fireman  and  the  engineer  would 
get  off  and  it  would  be  taken  charge  of  by  the  yardmen,  who  would 
detach  it  from  the  train,  take  it  to  the  3^ard,  coal  and  sand  it  and  do 
all  things  necessary  except  the  matter  of  repair,  then  place  it  in  the 
round  house  where  it  would  be  cleaned  by  employees  other  than  the 
fireman  in  all  its  parts  beneath  the  running  board,  and  inspected  by 
the  machinist  and  repaired;  and  after  that  the  fireman  would  have 
ample  time  for  all  tbe  duties  imposed  upon  him  before  the  engine 
started  on  another  trip.  All  this  the  plaintiff  knew,  and  simply  took 
the  time  he  did  for  his  work  for  his  own  convenience.  On  this  par- 
ticular day  he  did  not  commence  work  until  three  or  four  hours  after 
the  arrival  of  tlie  train  at  El  Paso.  Prior  to  that  time  the  engine 
had  been  coaled  up,  the  coal  being  placed  in  the  tender  back  of  the 
engine.  Some  of  the  pieces  of  coal  were  from  a  foot  to  eighteen 
inches   in  length  and   from  six  to  eight  inches  in   width,  and  very 


CHAP.   III.]  NEGLIGENCE.  127 

heavy,  and  one  of  them  falling  off  might  strike  the  step.  The  engine 
had  not  at  the  time  of  the  accident  reached  the  round  house  for 
inspection  and  repair,  and  this  the  plaintiff  knew. 

From  this  outline  it  appears  that  the  master  provided  perfectly 
suitable  appliances,  and  appliances  in  good  condition;  that  they  were 
properly  secured  when  the  engine  started  on  its  trip,  and  that  it  is 
impossible  to  tell  from  the  testimony  how  the  step  was  loosened.  It 
may  have  been  from  the  ordinary  working  of  the  engine,  the  possi- 
bility of  which  was  testified  to  by  the  superintendent,  who  had  had 
long  experience  with  engines.  It  may  have  been  because  the  step 
struck  something  on  its  trip,  which  striking  might  produce  that  result 
according  to  the  testimony  of  other  experts  who  denied  that  the  ordi- 
nary working  of  the  engine  would  loosen  it.  We  say  this  notwith- 
standing the  testimony  of  the  plaintiff  that  the  step  did  not  hit  any- 
.thing  on  the  trip,  for  the  step  was  on  the  right  side  of  the  engine, 
the  side  occupied  by  the  engineer,  and  therefore  a  striking  might  have 
occurred  without  the  knowledge  of  the  plaintiff,  whose  work  did  not 
call  him  to  that  side  of  the  engine.  It  may  have  resulted  from  the 
dropping  on  the  step  of  some  of  the  large  lumps  of  coal  which  were 
thrown  into  the  tender  after  reaching  El  Paso.  AVe  are  not  insensible 
of  the  matter  to  which  the  plaintiff  calls  especial  attention,  to  wit, 
a  conflict  between  the  testimony  given  by  Alexander  Mitchell,  the 
round  house  foreman  at  Toyah,  at  the  first  trial,  and  that  given  by 
him  at  the  last.  At  the  first  trial  he  testified  that  the  step  was  not 
taken  off  at  Toyah.  In  the  last  that  it  was.  He  also  testified  that 
though  taken  off  it  was  securely  fastened  before  the  train  left.  The 
inference,  of  course,  sought  to  be  drawn  is  that  the  testimony  of  this 
witness  is  unreliable ;  that  it  is  to  be  believed  that  he  unscrewed  the 
nut,  but  not  to  be  believed  that  he  screwed  it  up  tightly,  and  there- 
fore another  possibility  of  the  cause  of  the  loosening  of  the  step  is 
introduced  into  this  case.  But  giving  full  weight  to  this  suggestion, 
it  still  appears  that  it  is  a  mere  matter  of  conjecture  as  to  how  the 
step  became  loose. 

On  the  other  hand,  it  must  be  remembered  that  the  plaintiff,  who 
knew  that  the  engine  was  to  be  taken  to  the  round  house  at  El  Paso 
and  inspected  and  repaired  before  he  was  called  upon  to  perform  any 
duties  upon  it,  for  his  own  convenience,  before  such  inspection  and 
repair  went  on  the  engine  and  attempted  to  discharge  his  duties  of 
cleaning,  etc.  If  he,  knowing  that  there  was  to  be  an  inspection  and 
repair  and  that  he  had  ample  time  thereafter  to  do  his  work,  pre- 
ferred not  to  wait  for  such  inspection  and  repair  but  to  take  the 
chances  as  to  the  condition  of  the  engine,  he  ought  not  to  hold  the 
company  responsible  for  a  defect  which  would  undoubtedly  have  been 
disclosed  by  the  inspection  and  then  repaired. 

Upon  these  facts  we  make  these  observations :  First.  That  while 
in  the  case  of  a  passenger  the  fact  of  an  accident  carries  with  it  a 


128  PATTON    V.    TEXAS,    ETC.,    RAILWAY    CO.  [CHAP.    ILL. 

presumption  of  negligence  on  the  part  of  the  carrier,  a  presumption 
which  in  the  absence  of  some  explanation  or  proof  to  the  contrary 
is  sufficient  to  sustain  a  verdict  against  him,  for  there  is  prima  facie 
a  breach  of  his  contract  to  carry  safely/  Stokes  v.  Saltonstall,  13  Pet. 
181;  Eailroad  Company  v.  Pollard,  23  Wall.  341;  Gleeson  v.  Vir- 
ginia Midland  Railroad,  140  U.  S.  435,  a  different  rule  obtains  as  to 
an  employee.  The  fact  of  accident  carries  with  it  no  presumption  of 
negligence  on  the  part  of  the  employer,  and  it  is  an  affirmative  fact 
for  the  injured  employee  to  establish  that  the  employer  has  been 
guilty  of  negligence.  Texas  &  Pacific  Railway  v.  Barrett,  166  U.  S. 
617.  Second.  That  in  the  latter  case  it  is  not  sufficient  for  the 
employee  to  show  that  the  employer  may  have  been  guilty  of  negli- 
gence —  the  evidence  must  point  to  the  fact  that  he  was.  And  where 
the  testimony  leaves  the  matter  uncertain  and  shows  that  any  one  of 
half  a  dozen  things  may  have  brought  about  the  injury,  for  some 
of  which  the  employer  is  responsible  and  for  some  of  which  he  is  not, 
it  is  not  for  the  jury  to  guess  between  these  half  a  dozen  causes  and 
find  that  the  negligence  of  the  employer  was  the  real  cause,  when 
there  is  no  satisfactory  foundation  in  the  testimony  for  that  conclu- 
sion. If  the  employee  is  unable  to  adduce  sufficient  evidence  to  show 
negligence  on  the  part  of  the  employer,  it  is  only  one  of  the  many 
cases  in  which  the  plaintiff  fails  in  his  testimony,  and  no  mere  sym- 
pathy for  the  unfortunate  victim  of  an  accident  justifies  any  departure 
from  settled  rules  of  proof  resting  upon  all  plaintiffs.  Third.  That 
while  the  employer  is  bound  to  provide  a  safe  place  and  safe  machin- 
ery in  which  and  with  which  the  employee  is  to  work,  and  while  this 
is  a  positive  duty  resting  upon  him  and  one  which  he  may  not  avoid 
by  turning  it  over  to  some  employee,  it  is  also  true  that  there  is  no 
guaranty  by  the  employer  that  place  and  machinery  shall  be  abso- 
lutely safe.  Hough  v.  Railway  Company,  10  Otto,  213,  218;  Balti- 
more &  Ohio  Railroad  v.  Baugh,  149  U.  S.  368,  386;  Baltimore  & 
Potomac  Railroad  v.  Mackey,  157  U.  S.  72,  87;  Texas  &  Pacific  Rail- 
way V.  Archibald,  170  U.  S.  665,  669.  He  is  bound  to  take  reason- 
able care  and  make  reasonable  effort,  and  the  greater  the  risk  which 
attends  the  work  to  be  done  and  the  machinery  to  be  used,  the  more 
imperative  is  the  obligation  resting  upon  him.  Reasonable  care  be- 
comes then  a  demand  of  liighor  supremacy,  and  yet  in  all  cases  it  is 
a  question  of  the  reasonableness  of  the  care  —  reasonableness  depend- 
ing upon  the  danger  attending  the  place  or  the  machinery. 

The  rule  in  respect  to  machinery,  which  is  the  same  as  that  in 
respect  to  place,  was  thus  accurately  stated  by  Mr.  Justice  Lamar, 
for  this  court,  in  Washington  &  Georgetown  Railroad  v.  McDade,  135 
U.  S.  554,  570: 

"  Noither  individuals  nor  corporations  are  bound,  as  employers,  to 
insure  the   absolute   safety   of   machinery   or   mechanical    appliances 

'  See  Byrne  v.  Boadle,  poBt,  p.  132,  and  Benedick  v.  Potts,  post,  p.  133. 


CHAP.   III.  J  NEGLIGENCE.  129 

whieli  they  provide  for  the  use  of  their  employees.  Nor  are  they 
bouiul  to  supply  the  best  and  safest  or  newest  of  those  appliances  for 
the  purpose  of  securing  the  safety  of  those  who  are  thus  employed. 
They  are,  however,  bound  to  use  all  reasonable  care  and  prudence 
for  the  safety  of  those  in  their  service,  by  providing  them  with 
machinery  reasonably  safe  and  suitable  for  the  use  of  the  latter.  If 
the  employer  or  master  fails  in  this  duty  of  precaution  and  care,  he 
is  responsible  for  any  injury  which  may  happen  through  a  defect  of 
machinery  which  was,  or  ought  to  have  been,  known  to  him,  and  was 
unknown  to  the  employee  or  servant." 

Tested  by  these  rules  we  do  not  feel  justified  in  disturbing  the 
judgment  approved  as  it  was  by  the  trial  judge  and  the  several  judges 
of  the  Circuit  Court  of  Appeals.  Admittedly,  the  step,  the  rod,  the 
nut,  were  suitable  and  in  good  condition.  Admittedly,  the  inspectors 
at  El  Paso  and  Toyah  were  competent.  Admittedly,  when  the  engine 
started  on  its  trip  from  El  Paso  the  step  was  securely  fastened,  the 
plaintiff  himself  being  a  witness  thereto.  The  engineer  used  it  in 
safety  up  to  the  time  of  the  engine's  return  to  El  Paso.  The  plaintiff 
was  not  there  called  upon  to  have  anything  to  do  with  the  engine  until 
after  it  had  been  inspected  and  repaired.  He  chose,  for  his  own  con- 
venience, to  go  upon  the  engine  and  do  his  work  prior  to  such  inspec- 
tion. No  one  can  say  from  the  testimony  how  it  happened  that  the 
step  became  loose.  Under  those  circumstances  it  would  be  trifling 
with  the  rights  of  parties  for  a  jury  to  find  that  the  plaintiff  had 
proved  that  the  injury  was  caused  by  the  negligence  of  the  employer. 

The  judgment  is  Affirmed. 


ELLIOTT  V.   CHICAGO,  MILWAUKEE,  &  ST.   PAUL  EAIL- 
WAY    COMPANY. 

Supreme  Court  of  the  United  States,  October,  1893.     150  U.  S.  245. 

Action  in  Dakota  Territory  for  damages  against  a  railway  company 
for  causing  the  death  of  the  plaintiff's  husband,  by  negligence.  The 
facts  are  stated  in  the  opinion  of  the  court. 

Mr.  Justice  Brewer.  The  question  in  this  case  is  as  to  the  lia- 
bility of  the  company  for  the  death  of  John  Elliott.  The  company 
made  three  defences :  One,  that  it  was  guilty  of  no  negligence ;  second, 
that  if  there  were  any  negligence,  it  was  that  of  a  fellow-servant ;  and 
third,  that  Elliott  was  guilty  of  contributory  negligence.  The  Su- 
preme Court  of  the  Territory,  in  its  opinion  filed  when  the  case  was 
first  in  that  court,  considered  the  last  two  defences  as  sustained,  and 
because  thereof  reversed  the  judgment  in  favor  of  the  plaintiff.  All 
of  them  have  been  presented  and  fully  argued  in  this  court,  but  as 
we  consider  the  third  sufficient,  it  is  unnecessary  to  notice  the  first 


130  ELLIOTT    V.    CHICAGO,    ETC.,   RAILWAY    CO.         [CIIAP.    III. 

two.  We  are  of  opinion  that  the  deceased  was  guilty  of  contributory 
negligence,  such  as  to  bar  any  recovery.  It  is  true  that  questions  of 
negligence  and  contributory  negligence  are  ordinarily  questions  of 
fact  to  be  passed  upon  by  a  jury;  yet  when  the  undisputed  evidence 
is  so  conclusive  that  the  court  would  be  compelled  to  set  aside  a  verdict 
returned  in  opposition  to  it,  it  may  withdraw  the  case  from  the  con- 
sideration of  the  jury,  and  direct  a  verdict.  Railroad  Co.  v.  Houston, 
95  U.  S.  697 ;  Schofield  v.  Chicago,  Milwaukee,  &  St.  Paul  Railroad, 
114  U.  S.  615;  Delaware,  Lackawanna,  &c.  Railroad  Co.  v.  Converse, 
139  U.  S.  469;    Aerkfetz  v.  Humphreys,  145  U.  S.  418. 

What  then  are  the  facts  concerning  the  accident?  It  took  place 
at  a  station  called  Heckling,  a  hamlet  of  two  or  three  houses,  and  of 
so  little  importance  that  at  the  time  the  company  had  no  station 
agent  there.  The  main  track  of  the  defendant's  road  ran  eastward 
and  westward  in  a  straight  line,  and  the  ground  was  level.  On  the 
north  side  of  this  track  was  a  siding  seven  hundred  and  twenty-eight 
feet  in  length  from  switch  to  switch,  and  distant  from  the  main  track 
at  the  maximum,  sixteen  feet.  This  siding  was  the  only  extra  track 
at  the  place.  About  one  hundred  feet  east  from  the  west  switch  was 
the  depot,  on  the  south  of  the  track,  and  some  ten  feet  therefrom. 
Two  hundred  feet  east  of  that  was  a  small  car  house,  sixteen  feet  from 
the  track.  These  were  the  only  buildings  on  the  depot  grounds.  JSTo 
cars  were  standing  on  the  track  or  siding.  The  day  was  clear,  and 
there  was  nothing  to  prevent  the  deceased  from  seeing  all  that  was 
going  on.  He  was  foreman  of  a  section  gang,  and  had  been  working 
on  this  track  for  ten  or  more  years.  In  expectation  of  a  coming 
freight  train  his  men  had  placed  their  hand-car  on  the  siding.  The 
train  was  due  at  8.25  a.  m.,  but  was  perhaps  five  or  ten  minutes  late. 
It  came  from  the  west,  and  at  this  station  made  a  double  flying  switch. 
This  was  accomplished  by  uncoupling  the  train  at  two  places,  thus 
breaking  it  into  three  sections.  The  first  section,  consisting  of  the 
engine  and  eighteen  cars,  moved  along  the  main  track;  but  before 
the  balance  of  the  train  reached  the  switch  —  its  speed  having  been 
checked  by  brakes  —  that  was  turned  so  that  two  cars,  constituting 
the  second  section  and  under  the  control  of  a  brakeman,  passed  on  to 
the  siding;  the  rear  section  having  been  still  further  checked  by 
brakes,  the  switch  was  reset  so  that  it  passed  on  to  the  main  track, 
following  the  first  section.  The  rear  section  consisted  of  a  flat  car, 
a  box  car,  a  caboose,  and  an  empty  passenger  coach,  and  was  under 
the  care  of  the  conductor  and  one  brakeman.  As  tlie  second  section 
was  thrown  by  the  flying  switch  on  the  siding,  two  of  the  men  started 
to  push  the  hand-car  towards  the  east,  so  as  not  to  be  struck  by  the 
approaching  freight  cars.  The  deceased  at  the  time  the  first  section 
passed  the  car  house  was  standing  some  sixteen  feet  west  thereof,  and 
four  or  five  feet  from  the  track,  talking  with  one  of  his  men.  After 
a  short  conversation  the  latter  started  towards  the  depot,  while  the 


CHAP.    III.]  NEGLIGENCE.  131 

deceased  walked  eastward  along  the  track  until  he  had  passed  a  few 
feet  beyond  the  car  house,  when  he  started  hastily  toward  the  siding. 
His  attention  had  apparently  been  called  by  the  approach  of  the  two 
cars  on  the  siding  to  tlie  hand-car,  for  he  made  some  call  to  the  men 
who  were  pushing  that  hand-car.  He  crossed  the  main  track  diag- 
onally, his  face  turned  eastward.  The  rear  section,  coming  along 
from  the  west,  struck  and  crushed  him.  This  rear  section,  when  it 
passed  the  depot,  was  moving  slowly,  not  faster  than  a  walk,  as  one 
of  the  witnesses  testified.  That  it  was  moving  quite  slowly  is  evident 
from  the  fact  that  it  came  to  a  stop  after  two  cars  and  the  caboose 
had  passed  over  the  body  of  the  deceased,  and  this  though  no  special 
effort  was  made  to  check  them  after  the  deceased  had  been  struck, 
the  conductor  and  brakeman  on  that  section  being  unaware  of  the 
accident.  When  he  started  to  cross  the  track,  this  approaching  sec- 
tion was  not  to  exceed  twenty-five  or  thirty  feet  from  him. 

It  thus  appears  that  the  deceased,  an  experienced  railroad  man,  on 
a  bright  morning,  and  with  nothing  to  obstruct  his  vision,  starts 
along  and  across  a  railroad  track  with  which  he  was  entirely  familiar, 
with  cars  approaching  and  only  twenty-five  or  thirty  feet  away,  and 
before  he  gets  across  that  track  is  overtaken  by  those  cars  and  killed. 
But  one  explanation  of  his  conduct  is  possible,  and  that  is  that  he 
went  upon  the  track  without  looking  to  see  whether  any  train  was 
coming.  Such  omission  has  been  again  and  again,  both  as  to  travellers 
on  the  highway  and  employees  on  the  road,  affirmed  to  be  negligence. 
The  track  itself,  as  it  seems  necessary  to  iterate  and  reiterate,  is  itself 
a  warning.  It  is  a  place  of  danger.  It  can  never  be  assumed  that 
cars  are  not  approaching  on  a  track,  or  that  there  is  no  danger  there- 
from. It  may  be,  as  is  urged,  that  his  motive  was  to  assist  in  getting 
the  hand-car  out  of  the  way  of  the  section  moving  on  the  siding.  But 
whatever  his  motive,  the  fact  remains  tliat  he  stepped  on  the  track  in 
front  of  an  approaching  train,  without  looking,  or  taking  any  pre- 
cautions for  his  own  safety. 

This  is  not  a  case  in  which  one,  placed  in  a  position  of  danger 
through  the  negligence  of  the  company,  confused  by  his  surroundings, 
makes  perhaps  a  mistake  in  choice  as  to  the  way  of  escape,  and  is 
caught  in  an  accident.  For  here  the  deceased  was  in  no  danger.  He 
was  standing  in  a  place  of  safety  on  the  south  side  of  the  main  track. 
He  went  into  a  place  of  danger  from  a  place  of  safety,  and  went  in 
without  taking  the  ordinary  precautions  imperatively  required  of  all 
who  place  themselves  in  a  similar  position  of  danger. 

The  trial  court  was  right  in  holding  that  he  was  guilty  of  contribu- 
tory negligence.  So  without  considering  the  other  questions  presented 
in  the  record,  the  judgment  will  be 

Affirmed. 


132  BYRNE  V.    BOADLE.  [CHAP.  III. 

BYRNE    V.  BOADLE. 

Court  of  Exchequer  of  England,  Michaelmas  Term,   1863.     2  Hurl.  &  C.  722. 

Declaration.  For  that  the  defendant,  by  his  servants,  so  negli- 
gently and  unskilfully  managed  and  lowered  certain  barrels  of  flour 
by  means  of  a  certain  jigger-hoist  and  machinery  attached  to  the  shop 
of  the  defendant,  situated  in  a  certain  highway,  along  which  the 
plaintiff  was  then  passing,  that,  by  and  through  the  negligence  of  the 
defendant  by  his  said  servants,  one  of  the  said  barrels  of  flour  fell 
upon  and  struck  against  the  plaintiff,  whereby  the  plaintiff  was  thrown 
down,  wounded,  lamed,  and  permanently  injured,  and  was  prevented 
from  attending  to  his  business  for  a  long  time,  to  wit,  thence  hitherto, 
and  incurred  great  expense  for  medical  attendance,  and  suffered  great 
pain  and  anguish,  and  was  otherwise  damnified.    Plea,  not  guilty. 

At  the  trial  before  the  learned  assessor  of  the  Court  of  Passage  at 
Liverpool,  the  evidence  adduced  on  the  part  of  the  plaintiff  was  as 
follow :  A  witness  named  Critchley  said :  "  On  the  18th  July,  I  was 
in  Scotland  Road,  on  the  right  side  going  north;  defendant's  shop 
is  on  that  side.  When  I  was  opposite  to  his  shop,  a  barrel  of  flour 
fell  from  a  window  above  in  defendant's  house  and  shop,  and  knocked 
the  plaintiff  down.  He  was  carried  into  an  adjoining  shop.  A  horse 
and  cart  came  opposite  the  defendant's  door.  Barrels  of  flour  were 
in  the  cart.  I  do  not  think  the  barrel  was  being  lowered  by  a  rope. 
I  cannot  say:  I  did  not  see  the  barrel  until  it  struck  the  plaintiff. 
It  was  not  swinging  when  it  struck  the  plaintiff.  It  struck  him  on 
the  shoulder  and  knocked  him  towards  the  shop.  No  one  called  out 
until  after  the  accident."  The  plaintiff  said:  "On  approaching  Scot- 
land Place  and  defendant's  shop,  I  lost  all  recollection.  I  felt  no 
blow.  I  saw  nothing  to  warn  me  of  danger.  I  was  taken  home  in  a 
cab.  I  was  helpless  for  a  fortnight."  (He  then  described  his  suffer- 
ings.) "  I  saw  the  path  clear.  I  did  not  see  any  cart  opposite  defend- 
ant's shop."  Another  witness  said :  "  I  saw  a  barrel  falling.  I  don't 
know  how,  but  from  defendant's."  The  only  other  witness  was  a  sur- 
geon, who  described  the  injury  which  the  plaintiff  had  received.  It 
was  admitted  that  the  defendant  was  a  dealer  in  flour. 

It  was  submitted,  on  the  part  of  the  defendant,  that  there  was  no 
evidence  of  negligence  for  the  jury.  The  learned  assessor  was  of  that 
opinion,  and  non-suited  the  plaintiff,  reserving  leave  to  him  to  move 
the  Court  of  Exchequer  to  enter  the  verdict  for  him  with  £50  dam- 
ages, the  amount  assessed  by  the  jury.  Rule  nisi  to  enter  verdict  for 
the  plaintiff. 

T'oLLOCK,  C.  B.  We  are  all  of  opinion  that  the  rule  must  be  abso- 
luff  to  enter  the  verdict  for  the  plaintiff.  The  learned  counsel  was 
quite  right  in  saying  that  there  are  many  accidents  from  which  no 


CHAP.   III.]  NEGLIGENCE.  133 

presumption  of  negligence  can  arise,  but  I  think  it  would  be  wrong 
to  lay  down  as  a  rule  that  in  no  case  can  a  presumption  of  negligence 
arise  from  the  fact  of  an  accident.  Suppose  in  this  case  the  barrel 
had  rolled  out  of  the  warehouse  and  fallen  on  the  plaintiff,  how  could 
he  possibly  ascertain  from  what  cause  it  occurred?  It  is  the  duty 
of  persons  who  keep  barrels  in  a  warehouse  to  take  care  that  they  do 
not  roll  out,  and  I  think  that  such  a  case  would,  beyond  all  doubt, 
afford  prima  facie  evidence  of  negligence.  A  barrel  could  not  roll 
out  of  a  warehouse  without  some  negligence,^  and  to  say  that  a  plaintiff 
who  is  injured  by  it  must  call  witnesses  from  the  warehouse  to  prove 
negligence  seems  to  me  preposterous.  So  in  the  building  or  repairing 
a  house,  or  putting  pots  on  the  chimneys,  if  a  person  passing  along 
the  road  is  injured  by  something  falling  upon  him,  I  think  the  acci- 
dent alone  would  be  prima  facie  evidence  of  negligence.  Or  if  an 
article  calculated  to  cause  damage  is  put  in  a  wrong  place  and  does 
mischief,  I  think  that  those  whose  duty  it  was  to  put  it  in  the  right 
place  are  prima  facie  responsible,  and  if  there  is  any  state  of  facts 
to  rebut  the  presumption  of  negligence,  they  must  prove  them.  The 
present  case  upon  the  evidence  comes  to  this;  a  man  is  passing  in 
front  of  the  premises  of  a  dealer  in  flour,  and  there  falls  down  upon 
him  a  barrel  of  flour.  I  think  it  apparent  that  the  barrel  was  in  the 
custody  of  the  defendant  who  occupied  the  premises  and  who  is  re- 
sponsible for  the  acts  of  his  servants  who  had  the  control  of  it;  and 
in  my  opinion  the  fact  of  its  falling  is  prima  facie  evidence  of  negli- 
gence, and  the  plaintiff  who  was  injured  by  it  is  not  bound  to  show 
that  it  could  not  fall  without  negligence,  but  if  there  are  any  facts 
inconsistent  with  negligence  it  is  for  the  defendant  to  prove  them. 
Bramwell,  Channell  and  Pigott,  BB,  concurred. 

Rule  absolute. 


BENEDICK  V.  POTTS. 

Supreme  Court  of  Maryland,  June,  1898.     88  Maryland,  52. 

Action  for  negligence.     The  facts  are  stated  in  the  opinion. 

Mc Sherry,  J.  This  is  an  action  to  recover  damages  for  a  personal 
injury,  and  the  single  question  which  the  record  presents  is  whether 
there  was  legally  sufficient  evidence  of  the  defendant's  imputed  negli- 
gence to  carry  the  case  to  the  jury.  The  facts  are  few  and  simple. 
The  defendant,  who  is  the  appellee  in  this  Court,  was,  at  the  time  the 
occurrences  about  to  be  stated  took  place,  engaged  in  running  amuse- 
ments at  Tolchester  Beach,  a  pleasure  or  excursion  resort  in  Kent 
County.  He  owned  and  operated  a  mimic  railway  called  Pike's  Peak 
railroad.  This  is  a  wooden  structure  covering  a  space  one  hundred 
and  fifty  feet  long  and  sixty-five  feet  wide.     It  is  elevated  thirty-five 

*That  Is,  ordinarily. 


134  BENEDICK  V.   POTTS.  [CIIAP.   III. 

feet  at  its  highest  point.  From  this  point  a  circular,  or  rather,  an 
elliptical,  inclined  track  runs  downward,  making  three  circuits  before 
reaching  the  ground.  The  total  length  of  this  spiral  track  is  about 
two  thousand  feet.  Open  and  uncovered  cars,  weighing  about  six 
hundred  pounds  and  having  two  horizontal  seats  wide  enough  for 
two  passengers  each,  are  hoisted  up  an  incline  to  the  highest  point 
of  the  railway  and  are  then  run  by  gravity  down  and  around  the 
circular  track  to  the  ground.  In  making  the  descent  the  cars  pass 
through  a  tunnel  which  is  part  of  the  structure  and  which  is  located 
about  the  middle  of  the  last  circle  nearest  the  ground.  This  tunnel 
is  one  hundred  and  fifty  feet  long  and  completely  encases  that  por- 
tion of  the  track  and  hides  the  cars  and  their  occupants  from  all 
observation  when  passing  through  it.  The  roof  of  the  tunnel  is  flat, 
and  is  covered  with  tongue  and  grooved  boards  running  crosswise 
and  securely  nailed  to  rails.  Down  the  centre  of  this  roof  and 
on  its  inner  surface  there  is  a  narrow  board  two  and  a  half  or 
three  inches  wide  which  is  fastened  to  the  roof  by  wire  nails 
that  are  clinched  on  the  outside.  The  cars  are  provided  with  han- 
dles for  the  occupants  to  grasp  during  the  rapid  descent.  In  Au- 
gust, eighteen  hundred  and  ninety-five,  the  appellant  in  company 
with  his  wife,  his  sister-in-law  and  Miss  Magee  visited  Tolchester 
Beach.  Whilst  there,  he,  his  sister-in-law  and  Miss  Magee  entered 
one  of  these  cars,  the  two  ladies  occupying  the  front  seat  and  the 
appellant  the  rear  one.  The  car  was  started  and  made  the  descent, 
but  when  it  reached  the  ground  at  the  end  of  the  track,  the  appellant 
was  not  in  it,  though  as  it  entered  the  tunnel  he  was  seen  to  be  upon 
it.  Search  was  at  once  made  and  he  was  found  inside  the  tunnel  in 
an  unconscious  condition  with  a  wound  upon  his  head.  He  was  car- 
ried out  and  taken  back  to  Baltimore  and  after  several  days  was 
restored  to  consciousness.  For  the  injuries  thus  sustained  this  suit 
was  brought.  There  was  some  evidence  tending  to  show  that  a  part 
of  the  board  running  down  the  centre  of  the  tunnel  roof  had  been 
slabbed  off  at  one  point,  but  there  was  nothing  to  indicate  when  that 
had  happened.  The  car  did  not  leave  the  track.  No  part  of  it  was 
shown  to  be  out  of  repair;  the  track  was  not  defective,  and  no  ex- 
planation is  given  in  the  record  as  to  what  caused  the  injury.  The 
appellant  distinctly  stated  that  he  made  no  effort  to  rise  as  he  passed 
tbrough  the  tunnel  and  that  he  did  not  release  or  relax  his  grasp  on 
the  sides  of  the  car.  He  was  on  the  car  when  it  passed  into  the 
tunnel,  ho  was  not  on  it  when  it  emerged.  How  he  got  off  is  not 
shown.  Upon  this  state  of  facts  the  trial  Court  instructed  the  jury 
that  there  was  no  legally  sufficient  evidence  to  show  that  tlie  defend- 
ant, the  a})f)(']Ioe,  had  been  guilty  of  negligence,  and  the  verdict  and 
judgment  were  accordingly  entered  for  the  defendant.  Thereupon 
Ihc  plaintiff  brought  up  tlie  record  to  this  Court  by  appeal. 

It  is  a  perfectly  well-settled  principle  that  to  entitle  a  plaintiff  to 


CHAP.   III.]  NEGLIGENCE.  135 

recover  in  an  action  of  this  kind  he  must  show  not  only  that  he  has 
sustained  an  injury  but  that  the  defendant  has  been  guilty  of  some 
negligence  which  produced  that  particular  injury.  The  negligence 
alleged  and  the  injury  sued  for  must  bear  the  relation  of  cause  and 
effect.  The  concurrence  of  both  and  the  nexus  between  them  must 
exist  to  constitute  a  cause  of  action.  As  an  injury  may  occur  from 
causes  other  than  the  negligence  of  the  party  sued,  it  is  obvious  that 
before  a  liability  on  account  of  that  injury  can  be  fastened  upon  a 
particular  individual,  it  must  be  shown,  or  there  must  be  evidence 
legally  tending  to  show,  that  he  is  responsible  for  it;  that  is,  that 
he  has  been  guilty  of  the  negligence  that  produced  or  occasioned  the 
injury.  In  nf)  instance  can  the  bare  fact  that  an  injury  has  happened, 
of  itself  and  divorced  from  all  the  surrounding  circumstances,  justify 
the  inference  that  the  injury  was  caused  by  negligence.  It  is  true 
that  direct  proof  of  negligence  is  not  necessary.  Like  any  other  fact, 
negligence  may  be  established  by  the  proof  of  circumstances  from 
which  its  existence  may  be  inferred.  But  this  inference  must,  after 
all,  be  a  legitimate  inference  and  not  a  mere  speculation  or  conjecture. 
There  must  be  a  logical  relation  and  connection  between  the  circum- 
stances proved  and  the  conclusion  sought  to  be  adduced  from  them. 
This  principle  is  never  departed  from,  and  in  the  very  nature  of 
things  it  never  can  be  disregarded.  There  are  instances  in  which  the 
circumstances  surrounding  an  occurrence  and  giving  a  character  to 
it  are  held,  if  unexplained,  to  indicate  the  antecedent  or  coincident 
existence  of  negligence  as  the  efficient  cause  of  an  injury  complained 
of.  These  are  the  instances  where  the  doctrine  of  res  ipsa  loquitur 
is  applied.  This  phrase,  which  literally  translated  means  that  "  the 
thing  speaks  for  itself,"  is  merely  a  short  way  of  saying  that  the  cir- 
cumstances attendant  upon  an  accident  are  themselves  of  such  a 
character  as  to  justify  a  jury  in  inferring  negligence  as  the  cause 
of  that  accident;  and  the  doctrine  which  it  embodies,  though  correct 
enough  in  itself,  may  be  said  to  be  applicable  to  two  classes  of  cases 
only,  viz.,  first,  "  when  the  relation  of  carrier  and  passenger  exists 
and  the  accident  arises  from  some  abnormal  condition  in  the  depart- 
ment of  actual  transportation;  second,  where  the  injury  arises  from 
some  condition  or  event  that  is  in  its  very  nature  so  obviously  destruct- 
ive of  the  safety  of  person  or  property  and  is  so  tortious  in  its  quality 
as,  in  the  first  instance  at  least,  to  permit  no  inference  save  that  of 
negligence  on  the  part  of  the  person  in  the  control  of  the  injurious 
agency."  Thomas  on  Neg.  574.  But  it  is  obvious  that  in  both  in- 
stances more  than  the  mere  isolated,  single,  segregated  fact  that  an 
injury  has  happened  must  be  known.  The  injury,  without  more,  does 
not  necessarily  speak  or  indicate  the  cause  of  that  injury  —  it  is  color- 
less ;  but  the  act  that  produced  the  injury  being  made  apparent  may, 
in  the  instances  indicated,  furnish  the  ground  for  a  presumption  that 
negligence  set  that  act  in  motion.     The  maxim  does  not  go  to  the 


136  BENEDICK   V.    POTTS.  [CHAP.    III. 

extent  of  implying  that  you  may  from  the  mere  fact  of  an  injury 
infer  what  physical  act  produced  that  injury ;  but  it  means  that  when 
the  physical  act  has  been  shown  or  is  apparent  and  is  not  explained 
by  the  defendant,  the  conclusion  that  negligence  superinduced  it  may 
be  drawn  as  a  legitimate  deduction  of  fact.  It  permits  an  inference 
that  the  known  act  which  produced  the  injury  was  a  negligent  act, 
but  it  does  not  permit  an  inference  as  to  what  act  did  produce  the 
injury.  Negligence  manifestly  cannot  be  predicated  of  any  act  until 
you  know  what  the  act  is.  Until  you  know  what  did  occasion  an 
injury,  you  cannot  say  that  the  defendant  was  guilty  of  some  negli- 
gence that  produced  that  injury.  There  is,  therefore,  a  difference 
between  inferring  as  a  conclusion  of  fact  what  it  was  that  did  the 
injury;  and  inferring  from  a  known  or  proven  act  occasioning  the 
injury  that  there  was  negligence  in  the  act  that  did  produce  the 
injury.  To  the  first  category  the  maxim  res  ipsa  loquitur  has  no 
application;  it  is  confined,  when  applicable  at  all,  solely  to  the  second. 
In  no  case  where  the  thing  which  occasioned  the  injury  is  unknown 
has  it  ever  been  held  that  the  maxim  applies;  because  when  the 
thing  which  produced  the  injury  is  unknown  it  cannot  be  said  to 
speak  or  to  indicate  the  existence  of  causative  negligence.  In  all  the 
cases,  whether  the  relation  of  carrier  and  passenger  existed  or  not, 
the  injury  alone  furnished  no  evidence  of  negligence  —  something 
more  was  required  to  be  shown.  For  instance :  In  Penn.  R.  E.  Co.  v. 
MacKinney,  124  P.  St.  462,  it  was  said :  "  A  passenger's  leg  is  broken, 
while  on  his  passage,  in  a  railroad  car.  This  mere  fact  is  no  evidence 
of  negligence  on  the  part  of  the  carrier  until  something  further  be 
shown.  If  the  witness  who  swears  to  the  injury  testifies  also  that  it 
was  caused  by  a  crash  in  a  collision  with  another  train  of  cars  belong- 
ing to  the  same  carrier,  the  presumption  of  negligence  immediately 
arises ;  not,  however,  from  the  fact  that  the  leg  was  broken,  but  from 
the  circumstances  attending  the  fact."  And  so  in  Byrne  v.  Boadle, 
2  Hurl.  &  Colt.  728,^  there  was  proof  not  only  of  an  injury  but  there 
was  evidence  to  show  how  the  injury  happened,  and  the  presumption 
of  negligence  was  applied,  not  because  of  there  being  an  injury,  but 
because  of  the  way  or  manner  in  which  the  injury  was  produced.  And 
in  Howser's  case,  80  Md.  146,  the  injury  was  caused  by  cross-ties  fall- 
ing from  a  moving  train  upon  the  plaintiff  who  was  walking  by  the 
side  of  the  track  and  the  presum])tion  of  negligence  was  allowed,  not 
as  an  inference  deducible  from  the  injury  itself,  but  as  a  conclusion 
resulting  from  the  method  in  which  and  the  instrumentality  by  which 
the  injury  had  been  occasioned.  In  the  recent  case  of  Consolidated 
Traction  Co.  v.  Thalhcimcr,  Court  of  Errors  and  Appeals,  N.  J.  2 
Amer.  Ncg.  Tiep.  196,  it  appeared  tliat  the  plaintiff  was  a  passenger 
of  the  appellant,  and,  having  been  notified  by  the  conductor  that  the 
car  was  approaching  the  point  where  slic  desired  to  alight,  got  up 

»  Antf.   p.  l.'f'J. 


CHAP.   III.]  NEGLIGENCE.  137 

from  her  seat  and  walked  to  the  door  while  the  ear  was  in  motion,  and, 
while  going  through  the  doorway,  she  was  thrown  into  the  street  by 
a  sudden  lurch  and  thus  injured.  The  Court  said :  "  At  all  events, 
the  fact  that  such  a  lurch  or  jerk  occurred,  as  would  have  been  un- 
likely to  occur  if  proper  care  had  been  exercised,  brings  the  case  within 
the  maxim  res  ipsa  loquitur."  The  inference  of  negligence  arose  not 
from  the  injury  to  the  passenger,  but  from  the  act  that  caused  the 
injury.  In  B.  &  0.  R.  II.  v.  Worthington,  21  Md.  275,  the  train  was 
derailed  in  consequence  of  an  open  switch,  and  it  was  held  that  the 
injury  thus  inflicted  on  the  passenger  was  presumptive  evidence  of 
negligence  —  not  that  the  mere  injury  raised  such  a  presumption,  but 
that  the  injury  caused  in  the  way  and  under  the  circumstances  shown 
indicated  actionable  negligence  unless  satisfactorily  explained. 

Whether,  therefore,  there  be  a  contractual  relation  between  the 
parties  or  not,  there  must  be  proof  of  negligence  or  proof  of  some  cir- 
cumstances from  which  negligence  may  be  inferred,  before  an  action 
can  be  sustained.  And  whether  you  characterize  that  inference  an 
ordinary  presumption  of  fact,  or  say  of  the  act  that  caused  the  injury, 
the  thing  speaks  for  itself,  you  assert  merely  a  rebuttable  conclusion 
deduced  from  known  and  obvious  premises.  It  follows,  of  course, 
that  when  the  act  that  caused  the  injury  is  wholly  unknown  or  undis- 
closed, it  is  simply  and  essentially  impossible  to  affirm  that  there  was 
a  negligent  act;  and  neither  the  doctrine  of  res  ipsa  loquitur  nor  any 
other  principle  of  presumption  can  be  invoked  to  fasten  a  liability 
upon  the  party  charged  with  having  by  negligence  caused  the  injury 
for  the  infliction  of  which  a  suit  has  been  brought. 

Now,  in  the  case  at  bar  there  is  no  evidence  that  the  car  on  the 
track  was  out  of  repair.  The  car  went  safely  to  its  destination  carry- 
ing the  other  occupants.  There  is  no  evidence  that  the  roof  of  the 
tunnel  struck  the  appellant,  or  that  the  fact  that  a  small  part  of  the 
central  plank  of  the  tunnel  roof  had  been  slabbed  off  had  the  most 
remote  connection  with  the  accident.  It  is  a  case  presenting  not  a 
single  circumstance  showing  liow  or  by  what  agency  the  injury  oc- 
curred, and  in  which,  with  nothing  but  the  isolated  fact  of  the 
injury  having  happened,  being  proved,  it  is  insisted  that  the  jury 
shall  be  allowed  to  speculate  as  to  the  cause  that  produced  it,  and 
then  to  infer  from  the  cause  thus  assumed  but  not  established,  that 
there  was  actionable  negligence.  It  is  not  an  attempt  to  infer  negli- 
gence from  an  apparent  cause,  but  to  infer  the  cause  of  the  injury 
from  the  naked  fact  of  injury,  and  then  to  superadd  the  further  in- 
ference that  this  inferred  cause  proceeded  from  negligence.  If  in 
Howser's  case,  supra,  there  had  been  no  other  evidence  than  the  mere 
fact  of  an  injury,  it  cannot  be  pretended  that  the  jury  would  have 
been  allowed  to  speculate  as  to  how  the  injury  had  occurred. 

The  appellant  was  on  the  car  when  it  entered  the  tunnel;  he  was 
not  on  the  car  when  it  emerged,  but  was  found  in  an  unconscious 


138  MCCULLY   V.    CLAEK.  [CHAP.    III. 

state  in  the  tunnel.  There  was  no  defect  in  or  abnormal  condition 
affecting  the  means  of  actual  transportation.  The  other  occupants 
of  the  car  passed  safely  through.  What  caused  the  appellant  to  he 
out  of  the  car  is  a  matter  of  pure  conjecture.  No  one  has  explained 
or  attempted  to  explain  how  he  got  where  he  was  found.  Indeed  the 
two  persons  who  occupied  the  front  seat  were  ignorant  of  the  appel- 
lant's absence  from  the  car  until  it  had  reached  its  destination,  and  the 
appellant  himself  distinctly  testified  that  he  did  not  relax  his  hold  to 
the  car  and  did  not  attempt  to  rise  but  lowered  his  head  as  he  entered 
the  tunnel.  All  that  is  certain  is,  that  he  was  injured  in  some  way  and 
he  asks  that  the  jury  may  be  allowed,  in  the  absence  of  all  explanatory 
evidence,  to  infer  that  some  act  of  a  negligent  character  for  which  the 
appellee  is  responsible,  caused  the  injury  sustained  by  the  appellant. 
No  case  has  gone  to  that  extent  and  no  known  principle  can  be  cited 
to  sanction  such  a  position.  There  has  been  no  circumstance  shown 
which  furnishes  the  foundation  for  an  inference  of  negligence;  and 
the  circumstances  which  have  been  shown  obviously  do  not  bring  the 
case  within  the  doctrine  of  res  ipsa  loquitur.  There  was,  consequently, 
no  error  in  the  ruling  complained  of  and  the  judgment  of  the  Circuit 
Court  must  be  affirmed. 

Judgment  affirmed  with  costs  above  and  below. 


McCULLY   V.    CLARK. 

Supreme  Court  of  Pennsylvania,  1861.    40  Pa.  St.  399. 

This  was  an  action  on  the  case  brought  in  the  District  Court  at 
July  term,  1859,  by  James  McCully  against  Thomas  S.  Clark  and 
William  Thaw,  partners,  doing  business  as  Clark  &  Thaw,  to  recover 
damages  for  the  destruction  by  fire  of  a  warehouse  and  contents,  owned 
by  him,  on  Penn  Street,  in  the  city  of  Pittsburg,  alleged  to  have  been 
occasioned  by  the  default  of  the  defendants  in  "  negligently  and  wil- 
fully "  permitting  a  large  quantity  of  burning  coal  to  remain  for  a 
long  time  unextinguished  upon  their  premises,  immediately  adjoining 
the  wall  of  the  warehouse  which  was  destroj^ed.  The  testimony  was 
to  the  effect  that  plaintiff's  property,  of  the  value  of  $30,000,  was 
consumed  by  fire  on  the  morning  of  July  20,  1853 ;  that  the  premises 
had  been  closed  up  as  usual  on  the  previous  evening,  no  person  remain- 
ing therein,  and  no  fire  being  kept  thereupon ;  that  on  the  26th  day  of 
the  previous  month  the  warehouse  immediately  adjoining  thereto,  and 
0f;{;upicd  by  the  defendants,  who  were  transporters  upon  the  Pennsyl- 
vania Canal,  was  burned  to  the  ground  by  a  fire  originating  in  and 
communicated  by  a  boat  belonging  to  the  said  defendants;  that  the 
said  last-mentioned  warehouse,  being  of  the  height  of  a  single  story, 


CHAP.   III.]  NEGLIGENCE.  139 

and  without  any  cellar  underneath  the  same,  was  used  by  the  defend- 
ants for  the  deposit  of  coal,  belonging  to  themselves,  and  stored  for 
the  purpose  of  transportation  therein;  that,  at  the  time  of  the  said 
fire,  a  large  quantity  of  the  coal,  amounting  to  several  thousand 
bushels,  was  piled  up  to  the  depth  of  some  five  or  sijf  feet  against  the 
wall  next  adjoining  to  the  warehouse  of  the  plaintiff;  that  the  said 
coal  was  ignited  at  the  time  of  the  destruction  of  the  defendants' 
warehouse,  and  continued  to  burn  until  the  20th  of  July  next  follow- 
ing thereafter;  that  the  said  plaintiff,  apprehending  danger  there- 
from, complained  on  several  occasions  to  the  mayor  of  said  city,  and 
that,  notwithstanding  occasional  intermitted  efforts  on  the  part  of 
the  defendants  to  extinguish  the  same  by  throwing  water  thereon,  the 
coal  continued  to  burn  until  the  period  of  the  destruction  of  the 
plaintiff's  property. 

The  plaintiff  further  offered  evidence  to  show  that  his  warehouse 
was  strongly  and  substantially  built,  with  cellar  and  other  independent 
walls  throughout;  and  that  the  fire  had  its  commencement  in  the 
ends  of  the  timbers  inserted  in  that  part  of  the  defendants'  wall, 
against  which  the  said  mass  of  burning  coal  was  piled.  He  also  offered 
evidence  to  prove  that  the  application  of  water,  as  shown  by  the  testi- 
mony, would  be  only  to  intensify  the  heat;  that  the  only  feasible 
means  of  extinguishing  it  would  have  been  by  taking  the  same  away, 
and  that  a  large  portion  of  the  coal  was  converted  by  the  operation 
into  coke,  and  in  that  shape  afterward  disposed  of  and  removed  by 
the  defendants. 

The  defence  was,  that  the  fire  did  not  originate  from,  the  burning 
of  the  coal  in  the  ruins  of  defendants'  warehouse ;  that  the  defendants 
were  guilty  of  no  negligence  in  relation  to  the  coal  burning  in  the 
ruins  of  their  warehouse,  but  had  employed  frequent,  efficient,  and 
faithful  means  to  extinguish  the  fire  down  to  the  evening  immediately 
preceding  the  burning  of  plaintiff's  warehouse,  at  which  time  it  was 
apparently  extinguished,  no  fire  being  afterwards  seen  by  any  one  in 
the  ruins  of  defendants'  warehouse ;  and  that  if  there  was  in  fact,  or 
if  the  plaintiff  supposed  there  was,  the  slightest  danger  of  injury  to 
his  own  property  from  the  cause  assigned,  he  was  guilty  of  the  grossest 
negligence  in  neglecting  all  efforts  to  prevent  the  injury,  and  in  not 
giving  notice  to  defendants,  he  having  been  frequently  at  the  ruins 
while  the  fire  was  burning,  and  in  that  he  had  no  fear  of  it. 

Under  the  above  facts  the  plaintiff  requested  the  court  to  charge  the 
jury : — 

1.  That  if  the  jury  believe  that  the  defendants  had  a  large  pile  of 
coal  placed  in  their  warehouse  against  the  side  walls  thereof,  for  a 
distance  of  from  sixty  to  ninety  feet  or  thereabouts,  and  in  height 
against  said  walls  from  five  to  nine  feet  or  thereabouts,  and  extending 
out  from  said  walls  from  eight  to  twelve  feet  or  thereabouts,  at  the 
same  or  a  greater  height;    and  thence  extending  some  eight  or  ten 


140  MCCULLY    V.    CLARK.  [CHAP.    III. 

feet  further,  diminishing  from  said  height  to  almost  nothing;  and 
that  the  stone  wall  of  plaintiff's  warehouse  was  built  close  up  against 
the  stone  wall  of  defendants'  warehouse,  against  which  said  coal  was 
piled;  and  the  brick  wall  of  plaintiff's  warehouse  ran  close  alongside 
of  the  brick  wall  of  defendants'  warehouse,  against  which  said  coal  was 
piled;  and  if  the  jury  believe  that  said  coal  was  set  on  fire  by  the 
burning  of  defendants'  warehouse,  on  June  26,  1853,  and  continued 
to  burn  until  July  20,  1853,  the  defendants  being  aware  of  the  fact, 
still  in  possession,  and  having  caused  water  to  be  thrown  upon  the 
same  at  different  intervals  during  said  period,  without  extinguishing 
the  same ;  and  if  the  jury  further  believe  that  fire  was  communicated 
to  plaintiff's  warehouse  and  its  contents  from  the  fire  in  said  coal 
pile,  and  that  the  same  were  thereby  burned  up  on  July  20,  1853 ; 
then,  from  these  facts,  as  a  matter  of  law,  the  defendants  are  guilty 
of  negligence,  and  the  plaintiff  is  entitled  to  recover  the  value  of  his 
warehouse  and  its  contents. 

2.  That  if  the  jury  find  the  facts  as  stated  in  the  foregoing  point, 
and  the  court  should  decline  to  charge  that,  as  a  matter  of  law,  the 
plaintiff  is  entitled  to  recover,  then  the  court  is  requested  to  charge 
that  these  facts  throw  upon  defendants  the  burden  of  proof  in  the 
case;  and  the  jury  must  be  satisfied  that  said  fire  in  said  coal  pile 
could  not  have  been  extinguished  by  the  defendants  from  June  26  to 
July  20;  otherwise  the  plaintiff  is  entitled  to  a  verdict  for  the  value 
of  his  warehouse  and  its  contents. 

3.  That  there  is  no  evidence  in  the  cause  of  any  such  negligence 
on  part  of  plaintiff  as  will  prevent  his  recovering. 

4.  That  the  defendants  permitting  a  large  mass  of  coal,  piled 
against  the  walls  of  their  warehouse,  immediately  adjacent  to  the  walls 
of  plaintiff's  warehouse,  to  be  on  fire  for  some  twenty-four  days  in 
the  most  busy  part  of  the  city  of  Pittsburg,  they  knowing  the  fact, 
was  a  violation  of  their  duties  as  citizens ;  a  nuisance  and  gross  negli- 
gence towards  the  plaintiff  and  his  property;  and  if  plaintiff's  prop- 
erty was  set  on  fire  thereby  or  therefrom,  defendants  are  liable  for  the 
loss,  and  there  is  no  evidence  in  this  case  by  which  they  are  entitled 
to  escape  from  such  liability. 

5.  That  plaintiff  had  no  right  to  go  on  the  private  property  of 
defendants  to  extinguish  this  fire;  but  if  the  court  should  think  he 
had,  by  reason  of  the  fire  being  a  public  nuisance,  still  he  was  not 
bound  to  do  so,  and  his  failure  so  to  do  was  not  such  negligence  on  his 
part  as  will  prevent  his  recovering. 

G.  That  the  leaving  of  a  large  pile  of  burning  coal  belonging  to 
the  defendants,  upon  their  own  premises,  in  immediate  proximity  to 
the  plaintifT's  warehouse,  in  the  centre  of  a  populous  city,  is  negli- 
gence per  se;  and  if  the  plaintiff's  house  was  set  on  fire  thereby,  the 
defendants  arc  liable  to  the  extent  of  the  loss  thereby  occasioned. 

7.  That  it  was  the  duty  of  the  defendants  to  extinguish  the  said 


CHAP.   III.]  NEGLIGENCE.  141 

fire,  and,  if  not  otherwise  practicable,  to  remove  the  coal  itself  for 
that  purpose;  and  that  the  law  casts  no  duty  on  the  plaintiff  to 
undertake  the  labor  and  incur  the  expense  of  doing  this  himself. 

8.  That  if  the  law  did  make  it  the  duty  of  the  plaintiff  to  take  any 
steps  himself,  that  duty  was  discharged  by  an  application  to  the 
mayor,  and  such  application  will  relieve  him  from  the  imputation  of 
negligence.  The  court  below  (Williams,  J.),  after  reciting  the  main 
facts  of  the  case,  charged  the  jury  as  follows :  — 

"  The  plaintiff's  right  to  maintain  this  action,  and  to  recover  dam- 
ages for  the  destruction  of  his  warehouse  and  its  contents  by  fire,  and 
the  defendants'  liability  therefor,  depend  upon  well  settled  principles 
of  law,  easily  understood  and  readily  applied. 

"  1.  The  plaintiff  is  not  entitled  to  maintain  this  action,  and  to 
recover  damages  for  his  loss,  unless  the  fire  which  destroyed  his  ware- 
house was  occasioned  !)y  the  negligence  of  the  defendants.  Negli- 
gence is  the  very  gist  of  this  action;  and,  therefore,  unless  the  de- 
fendants' negligence  was  the  occasion  of  the  fire,  the  plaintiff  is  not 
entitled  to  recover. 

"  2.  The  plaintiff  was  bound  to  use  ordinary  and  reasonable  care 
and  diligence  for  the  preservation  of  his  property,  and  he  is  not 
entitled  to  recover  if  his  own  negligence  contributed  to,  or  was  the 
cause  of,  its  destruction.  If  the  fire  which  caused  the  loss  of  the 
warehouse  and  its  contents  was  occasioned  by  the  mutual  negligence 
of  both  the  plaintiff  and  defendants,  the  former  is  not  entitled  to 
recover  damages  for  the  loss  which  he  has  sustained.  Negligence  is 
the  want  of  proper  care,  caution,  and  diligence,  —  such  care,  caution, 
and  diligence  as,  under  the  circumstances,  a  man  of  ordinary  and 
reasonable  prudence  would  exercise.  It  consists  in  nonfeasance ;  that 
is,  omitting  to  do  or  not  doing  something  which  ought  to  be  done, 
which  a  reasonable  and  prudent  man  would  do;  and  a  misfeasance, 
that  is,  the  doing  something  which  ought  not  to  be  done,  something 
which  a  reasonable  man  would  not  do,  or  doing  it  in  such  a  manner 
as  a  man  of  ordinary  and  reasonable  prudence  would  not  do  it;  in 
either  case  causing,  unintentionally,  mischief  or  injury  to  a  third 
party. 

"  The  jury  will  then  determine  from  the  evidence :  — 

"1.  What  was  the  cause  of  the  burning  of  plaintiff's  warehouse? 
Was  it  set  on  fire  by  the  burning  of  the  coal  in  the  ruins  of  the 
warehouse  in  the  possession  and  occupancy  of  the  defendants?  Was 
the  wall  of  IMcCully's  warehouse  so  heated  by  the  burning  of  the  coal 
in  the  ruins  of  the  warehouse  of  Clark  &  Thaw,  that  it  set  the  girders 
in  the  wall  on  fire,  and  thus  communicated  the  fire  to  the  whole 
building  ? 

"  2.  If  so,  were  the  defendants  guilty  of  negligence  in  allowing  the 
coal  pile,  in  the  ruins  of  their  warehouse,  to  burn  in  the  way  and  for 
the  length  of  time  it  did  ?    If  the  defendants  were  guilty  of  negligence. 


142  MCCULLY    V.    CLAKK.  [CHAP.    III. 

it  was  because  they  did  not  extinguish  the  fire,  owing  to  the  fact  that 
either  they  did  not  use  the  proper  means,  or  did  not  employ  them  with 
sufficient  vigor,  energy,  and  perseverance. 

"  3.  Was  the  plaintiff  without  fault,  or  was  he  guilty  of  negligence ; 
and  was  his  negligence  the  cause  or  occasion  of  the  fire,  or  did  it 
contribute  thereto  ?  Would  his  warehouse  have  been  burned  if  he  had 
exercised  ordinary  and  reasonable  diligence  ?  "  The  court  called  the 
attention  of  the  jury  to  the  facts  and  circumstances  in  evidence,  relied 
on  by  the  counsel  on  both  sides  as  tending  to  show  the  origin  and  cause 
of  the  fire ;  and  also  as  tending  to  show  whether  their  respective  clients 
had  or  had  not  been  guilty  of  negligence,  and  then  proceeded  in  sub- 
stance as  follows :  — 

"  The  jury  will  determine  for  themselves  what  was  the  origin  of  the 
fire;  whether  or  not  it  was  set  on  fire  by  the  burning  coal  in  the 
ruins  of  the  defendants'  warehouse;  and  unless  satisfied  that  it  was, 
they  will  find  for  the  defendants.  But  if  the  jury  find  that  plaintiff's 
warehouse  was  set  on  fire  by  the  pile  of  burning  coal  in  the  ruins  of 
defendants'  warehouse,  and  that  the  defendants  did  not  use  ordinary 
care  and  skill  and  the  proper  means  to  extinguish  it,  and  that  they 
were  guilty  of  negligence  in  this  respect;  and  that  in  consequence 
thereof  plaintiff's  warehouse  was  set  on  fire,  then  the  jury  will  find 
for  the  plaintiff  damages  for  the  full  amount  of  his  loss,  unless  they 
find  that  his  own  want  of  reasonable  care  contributed  to  or  was  the 
occasion  of  his  loss.  The  plaintiff  is  not  entitled  to  recover  if  the 
loss  would  not  have  occurred  except  for  his  own  negligence. 

"  The  counsel  on  both  sides  have  submitted  a  number  of  points 
upon  which  they  have  prayed  the  instruction  of  the  court,  but  so  far 
as  they  are  not  answered  in  the  charge  they  are  refused.  The  court 
declines  to  charge,  as  matter  of  law,  either  that  there  was  or  was  not 
negligence  on  the  part  of  either  the  plaintiff  or  defendants.  "Whether 
either  or  both  the  parties  were  or  were  not  guilty  of  negligence,  are 
questions  of  fact  for  the  determination  of  the  jury,  from  all  the 
evidence  in  the  case." 

Under  these  instructions  there  was  a  verdict  and  judgment  in 
favor  of  defendants.  The  case  was  then  removed  into  this  court  by 
the  plaintiff,  who  assigned  for  error  the  refusal  of  the  court  below  to 
affirm  the  points  submitted,  and  to  charge,  as  matter  of  law,  either 
that  there  was  or  was  not  negligence  on  the  part  either  of  the  plaintiff 
or  defendants,  and  the  referring  the  same,  as  a  question  of  fact  for 
the  jury,  without  any  evidence  of  negligence  on  the  part  of  the  plain- 
tiff. 

Stuoxo,  J.  No  complaint  is  made  of  the  instruction  given  to  the 
jury  in  this  case.  None  could  be,  with  any  shadow  of  reason.  The 
charge  was  a  clear,  accurate,  and  comprehensive  statement  of  the 
principles  of  law  ap|)lica])le  to  the  facts  of  which  evidence  had  been 
given.     It  is  not  alleged  that  it  contained  any  thing  erroneous.     The 


CHAP.   III.]  NEGLIGENCE.  143 

complaint  here  is,  that  the  learned  judge  did  not  say  more ;  that  he 
did  not  take  the  facts  away  from  the  jury,  and  instruct  as  matter  of 
law  that  the  plaintiff  was  entitled  to  recover. 

The  action  was  brought  for  negligence.  The  point  of  the  accusa- 
tion was,  that  the  defendants  had  so  negligently  kept  and  continued 
a  certain  pile  of  coal  which  had  taken  fire,  and  so  wrongfully  and 
negligently  failed  to  extinguish  the  fire,  that  the  warehouse  of  the 
plaintiff,  with  its  contents,  had  been  ignited  and  destroyed.  Whether 
the  defendants  had  been  guilty  of  the  negligence  charged,  was,  there- 
fore, the  principal  subject  of  inquiry;  in  other  words,  whether  they 
had  exercised  such  care  and  diligence  to  prevent  injury  to  the  property 
of  the  plaintiff,  as  a  prudent  and  reasonable  man,  under  the  circum- 
stances, would  exercise.  Now,  it  is  plain  that  what  is  such  a  measure 
of  care  is  a  question  peculiarly  for  a  jury.  A  higher  degree  is  doubt- 
less demanded  under  some  circumstances  than  under  others.  It  varies 
with  the  danger.  And  when  the  standard  shifts  with  the  circum- 
stances of  the  case,  it  is  in  its  very  nature  incapable  of  being  deter- 
mined as  a  matter  of  law,  and  must  be  submitted  to  the  jury.  There 
are,  it  is  true,  some  cases  in  which  a  court  can  determine  that  omis- 
sions constitute  negligence.  They  are  those  in  which  the  precise 
measure  of  duty  is  determinate,  the  same  under  all  circumstances. 
When  the  duty  is  defined,  a  failure  to  perform  it  is,  of  course,  negli- 
gence, and  may  be  so  declared  by  the  court.  But  where  the  measure 
of  duty  is  not  unvarying,  where  a  higher  degree  of  care  is  demanded 
under  some  circumstances  than  under  others,  where  both  the  duty  and 
the  extent  of  performance  are  to  be  ascertained  as  facts,  a  jury  alone 
can  determine  what  is  negligence,  and  whether  it  has  been  proved. 
Such  was  this  case.  The  question  was  not  alone  what  the  defendants 
had  done,  or  left  undone;  but,  in  addition,  what  a  prudent  and  rea- 
sonable man  would  ordinarily  have  done  under  the  circumstances. 
Neither  of  these  questions  could  the  court  solve.  When,  therefore, 
the  court  was  asked  to  instruct  the  jury,  that  if  they  believed  certain 
facts  were  proved,  of  which  evidence  had  been  given,  the  defendants 
were  guilty  of  negligence,  and  the  plaintiff  was  entitled  to  recover, 
the  instruction  was  properly  refused.  It  could  not  have  been  given 
without  determining,  as  a  matter  of  law,  what  care  and  caution  a 
prudent  and  reasonable  man  would  have  exercised  in  circumstances 
similar  to  those  in  which  the  defendants  were  placed.  The  points 
proposed  to  the  court  assumed  that  the  defendants  were  under  obliga- 
tion completely  to  extinguish  the  fire  in  the  coal  pile  within  a  desig- 
nated time.  They  did  not  propose  to  submit  to  the  jury  even  so 
much  as  whether  it  could  have  been  done,  much  less  whether  every 
reasonable  effort  had  not  been  made  to  extinguish  it.  Nor  were  the 
facts  which  the  court  was  called  upon  to  declare  conclusive  proof  of 
negligence,  and  entitling  the  plaintiff  to  recover,  all  the  material  facts 
of  which  there  was  evidence  in  the  case.    There  were  others  of  a  qual- 


144  MCCULLY  V.    CLAEK.  [CHAP.  III. 

ifying  nature,  important  to  the  inquiry,  whether  the  defendants  had 
been  culpably  negligent.  Without  considering  these  other  facts,  the 
court  must  have  taken  but  a  one-sided  view  of  the  case.  Besides  all 
this,  the  court  could  not  have  directed  a  verdict  for  the  plaintiff,  as 
requested,  without  deciding  that  there  was  no  evidence  at  all  of 
concurring  negligence  on  the  part  of  the  plaintiff.  But  even  if  the 
loss  of  the  plaintiff  was  occasioned  by  want  of  due  caution  on  the 
part  of  the  defendants,  the  case  was  not  destitute  of  evidence  that 
the  plaintiff's  negligence  contributed  to  the  loss. 

For  similar  reasons,  the  court  was  right  in  declining  to  charge  the 
jury  that  certain  facts  enumerated,  even  though  not  constituting 
negligence  in  law,  threw  upon  the  defendants  the  burden  of  proof  in 
the  case,  and  that  the  jury  must  be  satisfied  that  the  fire  could  not 
have  been  extinguished  within  a  designated  time,  or  the  plaintiff 
would  be  entitled  to  a  verdict.  The  instruction  asked  for  assumed 
that  it  was  for  the  court  to  determine  precisely  what  was  due  dili- 
gence and  caution,  and  to  rule  that  nothing  less  than  the  complete 
extinguishment  of  the  fire  in  the  specified  time,  if  possible,  would 
bring  their  conduct  up  to  the  standard  by  which  prudent  and  reason- 
able men  are  guided.  This  point,  also,  as  did  the  others,  ignored 
pertinent  and  important  facts  in  evidence,  which  must  have  been 
considered  in  determining  whether  there  was  negligence  at  all;  and, 
if  affirmed,  it  might  have  given  the  plaintiff  a  verdict,  even  though 
the  plaintiff's  own  negligence  may  have  concurred  in  causing  his  loss. 
In  actions  for  negligence  the  burden  of  proof  is  upon  the  plaintiff. 
The  law  will  not  presume  it  for  him.  And  in  cases  like  this,  where 
all  the  evidence  must  be  considered  in  order  to  ascertain  whether 
negligence  existed,  it  is  a  mistake  to  suppose  that  a  court  may  be  re- 
quired to  single  out  some  of  the  facts  proved  and  declare  that  they 
remove  the  burden  of  proof  from  the  shoulders  of  the  plaintiff,  and 
cast  it  on  the  defendant.  That  can  only  be  done  where  a  court  can 
determine  what  constitutes  guilt.  It  is  the  province  of  the  jury  to 
balance  the  probabilities,  and  determine  where  the  preponderance  lies. 
The  case  relied  upon  by  the  plaintiff  in  error,  Piggot  v.  The  Eastern 
Counties  Railway  Company,  3  Com.  B.  229,  54  Eng.  C.  L.  Rep.  228, 
is  in  perfect  harmony  with  these  doctrines.  In  that  case  the  defend- 
ants ran  a  locomotive,  the  sparks  from  which  set  fire  to  the  property 
of  the  plaintiff.  Using  a  dangerous  agent,  the  law  required  of  them 
to  adopt  such  precautions  as  might  reasonably  prevent  damage  to  the 
property  of  others.  Some  precaution  was  a  duty.  They  had  no  right 
to  run  their  locomotive  without  it.  Failure  to  adopt  some  precaution 
was,  therefore,  failure  to  discliarge  a  defined  duty,  and  was  negligence. 
In  such  a  case  tJK;  court  might  well  say,  as  was  said,  tliat  a  fire  caused 
by  running  the  engine,  without  any  evidence  of  precaution,  estab- 
lished a  prima  facie  case  of  negligence.  Even  this,  however,  was  not 
laid  down  as  a  matter  of  law  to  the  jury.    It  was  only  said  by  one  of 


CHAP.    III.]  NEGLIGENCE.  145 

the  judges,  in  commenting  on  the  evidence,  and  in  reply  to  a  rule  for 
a  new  trial,  on  the  ground  that  the  verdict  was  against  the  weight  of 
the  evidence.  It  was,  therefore,  no  more  than  an  assertion  that  the 
jury  might  have  drawn  the  inference  of  negligence  from  the  facts  that 
a  locomotive  had  kindled  a  fire,  and  that  there  had  been  no  precaution. 
That  was  a  very  different  case  from  the  present.  Even  if  the  court 
might  in  that  case  have  declared  the  effect  of  the  evidence,  it  must 
have  been  because  the  duty  of  the  defendants  was  unvarying  and  well 
defined  by  the  law.  Here  the  standard  of  duty  was  to  be  found  as 
a  fact,  as  well  as  the  measure  of  its  performance,  and  there  was 
evidence  of  earnest,  continued,  and  apparently  successful  efforts  to 
extinguish  the  fire  in  the  coal.  This  disposes  of  all  the  assigned 
errors,  except  the  fifth  and  eighth.  Of  them  we  need  only  say  that 
they  were  not  insisted  on  in  argument,  and  we  have  not  been  able 
to  discover  that  they  point  to  any  error  committed. 

Judgment  affirmed. 


WALKEE'S  ADMINISTRATOR  v.  POTOMAC,  ETC.,  R.   CO. 

Supreme  Court  of  Appeals  of  Virginia,  March,  1906.     105  Va.  226. 

The  case  is  stated  in  the  opinion. 

Buchanan,  J.  This  action  was  instituted  by  the  plaintiff  in  error 
against  the  defendant  company  to  recover  damages  for  the  death  of 
his  intestate,  caused  by  the  alleged  negligence  of  the  defendant. 

The  evidence  shows  that  the  defendant  has  a  turntable  on  its  own 
premises  near  Orange  Court  House,  located  about  220  feet  from  its 
station  or  depot;  about  360  feet  from  the  public  road  which  runs 
from  the  depot  to  the  village  of  Orange  Court  House;  close  by  a 
mill-road,  which  is  not  public ;  fifty  or  sixty  feet  from  what  is  known 
as  the  horse-show  grounds ;  about  340  feet  from  any  inhabited  house ; 
and  in  an  open  and  unoccupied  field ;  that  boys  were  in  the  habit  of 
playing  ball  on  the  horse-show  grounds,  between  which  and  the  railway 
land  there  was  no  fence ;  that  boys  frequently  rode  on  the  turntable, 
and  had  once  been  seen  riding  on  it  by  the  depot  agent;  that  some 
years  before  the  accident  two  boys  had  been  injured  in  playing  with 
the  turntable,  which  was  of  the  ordinary  kind  in  use,  and  was  neither 
locked  nor  fastened;  that  on  the  Sunday  evening  of  the  accident  the 
plaintiff's  intestate,  who  was  a  little  over  twelve  years  of  age,  with 
two  other  boys  of  about  the  same  age,  was  pushing  the  turntal)le 
around  the  track  preparing  to  jump  on  it,  and  as  he  did  so  one  of  his 
feet  was  caught  between  the  rails  and  mashed,  causing  lockjaw,  from 
the  effects  of  which  he  died. 

Upon  the  trial  of  the  cause  there  was  a  verdict  and  judgment  in 
favor  of  the  defendant.  To  that  judgment  this  writ  of  error  was 
awarded. 


146  WALKER   V.    POTOMAC,    ETC.,    R.    CO.  [CHAP.    III. 

The  only  question  involved  in  this  writ  of  error  is  wliether  or  not, 
under  the  facts  of  the  case,  which  are  not  disputed,  the  defendant  was 
guilty  of  negligence  in  leaving  the  turntable  in  the  place  where  it  was, 
on  its  own  premises,  unfenced  and  unfastened. 

The  general  rule  is  that  a  landowner  does  not  owe  to  a  trespasser 
(and  the  same  is  true  of  a  bare  licensee)  the  duty  of  having  his  land 
in  a  safe  condition  for  a  trespasser  to  enter  upon.  The  latter  has 
ordinarily  no  remedy  for  harm  happening  to  him  from  the  nature 
of  the  property  upon  which  he  intrudes,  and  he  takes  upon  himself 
the  risks  of  the  condition  of  the  land,  and  to  recover  for  an  injury 
happening  to  him  he  must  show  that  it  was  wantonly  inflicted,  or 
that  the  owner  or  occupant  being  present  could  have  prevented  the 
injury  by  the  exercise  of  ordinary  care  after  discovering  the  danger. 
Norfolk  &  Western  Ey.  Co.  v.  Wood,  99  Va.  156,  158-59;  Horten- 
stein's  Admr.  v.  Va.-Carolina  Ey.  Co.,  102  Va.  914,  918;  William- 
son V.  Southern  Ey.  Co.,  104  Va.  146 ;  Bishop  on  Non-Contract  Law, 
sec.  845;  Cooley  on  Torts  (2d  ed.)  791-94. 

It  is  not  denied,  as  we  understand  the  counsel  for  the  plaintiff, 
that  such  is  the  common  law  doctrine  as  to  adult  trespassers  and 
bare  licensees ;  but  his  contention  is  that,  under  certain  circumstances, 
such  as  are  disclosed  by  this  record,  it  is  not  the  rule  as  applied 
to  children.  To  sustain  that  contention  he  relies  upon  the  case  of 
Sioux  City  E.  Co.  v.  Stout,  17  Wall.  657,  and  the  cases  which  follow 
it. 

While  these  cases,  which  are  known  as  "  The  Turntable  Cases," 
fully  sustain  the  plaintiff's  contention,  there  is  a  remarkable  conflict 
of  authority  upon  the  subject.  The  doctrine  announced  in  the  Stout 
Case  has  been  discussed  in  numerous  cases  by  the  appellate  courts 
of  many  of  the  States  of  this  country,  with  the  result  that  there  are 
many  authorities  sustaining  the  doctrine  in  its  broadest  sense;  while 
many  utterly  repudiate  it,  and  others  give  it  a  qualified  recognition 
and  practically  limit  it  to  railroad  turntable  cases.  A  question  or 
problem  which  has  given  rise  to  such  a  wide  divergence  of  opinion 
is  not  of  easy  solution. 

As  this  is  the  first  case  involving  this  precise  question  which  has 
ever  come  to  this  court,  so  far  as  the  reported  decisions  show,  we 
are  at  liberty  to  follow  that  line  of  decisions  which,  in  our  judgment, 
is  more  nearly  in  accord  with  settled  principles  of  law  and  is  sus- 
tained by  the  better  reason. 

In  order  for  the  plaintiff  to  recover  in  this  case  it  must  appear 
that  the  defendant  company  owed  his  intestate  some  duty  which  it 
failed  to  discharge;  for  where  there  is  no  duty  there  can  l)c  no  negli- 
gence. N.  &  W.  Ey.  Co.  V.  Wood,  supra;  Ilortenstein's  Admr.  ■;;. 
Va.-Car.  l{y.  Co.,  supra;  Carson  Lime  Co.  v.  Eutherford,  102  Va. 
252. 

As  before  stated,  the  cominon  law  imposes  no  duty  upon  a  land- 


CHAP.    III.]  NEGLIGENCE.  147 

owner  to  use  care  to  keep  his  premises  in  such  condition  that  tres- 
passers and  bare  licensees  going  thereon  may  not  be  injured.  This 
is  unquestionably  the  rule  as  to  adults,  and  the  weight  of  authority 
as  it  seems  to  us,  shows  that  it  is  the  rule  as  to  children. 

The  cases  cited  in  the  case  of  Sioux  City  K,  Co.  v.  Stout  to  sustain 
the  opposite  view,  do  not,  as  it  seems  to  us,  do  so.  Those  cases  come 
within  other  rules,  or  within  well  defined  exceptions  to  the  general 
rule  that  a  landowner  owes  no  duty  to  a  trespasser,  adult  or  infant, 
except  that  he  must  not  wantonly  or  intentionally  injure  him  or  ex- 
pose him  to  danger.  This  is  clearly  shown,  we  think,  by  the  supreme 
Judicial  Court  of  Massachusetts,  in  the  case  of  Daniels  v.  N.  Y.  & 
N.  E.  E.  Co.,  154  Mass.  349,  and  by  Judge  Peckham  (now  of  the 
Supreme  Court  of  the  United  States),  in  delivering  the  opinion  of 
the  Court  of  Appeals  of  New  York,  in  Walsh  v.  Fitchburg,  &c., 
E.  Co.,  145  N.  Y.  301. 

The  conclusion  reached  in  those  cases  is  fully  sustained  by  the 
following  cases  (and  many  more  might  be  cited),  which  are  all 
"  Turntable  Cases,"  or  cases  in  which  the  doctrine  of  those  cases  was 
involved.  Frost  v.  Eastern  E.  Co.,  64  N.  H.  220;  Delaware,  &c., 
Ey.  Co.  V.  Eeich  (N.  J.),  40  Atl.  682;  Uttermohlen  v.  Boggs  Eun, 
&c.,  Co.,  50  W.  Va.  457 ;  Eyan  v.  Towar,  128  Mich.  463 ;  Paolino  v. 
McKendall,  24  E.  I.  432;  Dobbins  v.  Missouri  &c.,  Ey.  Co.,  91  Texas, 
60;  Savannah,  &c.,  Ey.  Co.  v.  Beavers,  113  Ga.  398. 

The  same  conclusion  was  reached  by  this  court  in  Clark  v.  City  of 
Eichmond,  83  Va.  355.  The  city  had  made  an  excavation  upon  the 
land  of  another,  into  which  a  child  of  six  years  fell  and  was  injured. 
In  denying  the  child  the  right  to  recover  in  that  case  it  was  said 
that  where  the  excavation  is  so  near  the  highway  that  a  traveller,  by 
making  a  false  step,  or  being  affected  by  sudden  giddiness,  might  be 
thrown  into  the  excavation  and  injured,  there  would  be  a  liability. 
"  But  if,  in  order  to  reach  the  place  of  danger,  the  party  injured  must 
become  a  trespasser  upon  the  premises  of  another,  the  case  will  be 
different,  for  in  such  a  case  there  is  no  breach  of  duty  from  which 
the  liability  to  respond  in  damages  can  result." 

But  in  some  of  the  "  Turntable  Cases "  the  right  to  recover  is 
maintained  upon  the  doctrine  of  constructive  invitation  —  that  is, 
that  if  a  person  is  allured,  or  tempted  by  some  act  of  a  railroad  com- 
pany to  enter  upon  its  lands,  he  is  not  a  trespasser;  and  it  is  held 
that  leaving  a  turntable  unfastened  or  unguarded,  under  circum- 
stances similar  to  those  disclosed  by  this  record,  is  such  an  act. 

One  of  the  cases  cited  and  relied  on  to  sustain  this  contention 
is  the  case  of  Bird  v.  Holbrook,  4  Bing.  628.  The  defendant  in  that 
case,  for  the  protection  of  his  property,  some  of  which  had  been 
stolen,  set  a  spring  gun,  without  notice,  in  a  walled  garden  some  dis- 
tance from  his  house.  The  plaintiff,  who  climbed  over  the  wall  in 
pursuit  of  a  stray  fowl,  having  been  injured,  it  was  held  that  the 


148  WALKER   V.    POTOMAC,    ETC.,   R.    CO.  [CHAP.    III. 

landowner  was  liable.     The  express  object  in  setting  the  spring  gun 
was  to  inflict  injury  —  to  do  an  intentional  wrong. 

Another  case  relied  on  is  that  of  Townsend  v.  Wathen,  9  East  277. 
That  was  a  case  where  a  landowner  had  set  traps  on  his  premises 
near  the  highway,  and  baited  them  with  decaying  meat,  so  that  its 
scent  would  extend  not  only  to  the  highway,  but  beyond  to  the  private 
premises  of  the  plaintiff,  whose  dogs,  scenting  the  meat,  came  upon 
the  defendant's  premises  and  were  caught  in  a  trap  and  thereby 
killed.  It  was  held  in  that  case  that  a  man  had  no  right  to  set  traps 
of  a  dangerous  description  in  a  situation  to  invite,  and  for  the  very 
purpose  of  inviting,  his  neighbor's  dogs,  as  it  would  compel  them 
by  their  instinct  to  come  into  his  traps.  The  act  of  the  defendant 
in  that  case  was  not  in  the  prosecution  of  his  legitimate  business, 
but  as  the  court  said  was  a  mere  malicious  attempt,  successful  in  its 
result,  to  entice  his  neighbor's  animals  upon  his  premises. 

The  gravamen  of  both  these  actions  was  the  wrongful  intention  of 
the  defendants.  To  liken  the  case  of  a  railroad  company  erecting  a 
turntable  on  its  own  premises  for  its  own  necessary  purposes  in  the 
regular  conduct  of  its  business,  with  no  desire  or  intention  to  injure 
anyone,  to  the  case  of  a  landowner  setting  spring  guns  or  traps  on 
his  land  for  the  express  purpose  of  doing  an  unlawful  or  malicious 
injury,  is,  as  it  seems  to  us,  to  lose  sight  of  the  difference  between 
negligence  and  intentional  wrongdoing.  Walsh  v.  Fitchburg,  &c.,  E. 
Co.  supra;  Dobbins  v.  Mo.,  Kansas  &  Tex.  Ey.  Co.  (Texas)  41  S. 
W.  63. 

"  The  viciousness  of  the  reasoning,"  said  the  Court  of  Appeals  of 
New  Jersey,  in  the  case  of  Delaware,  &c.,  E.  Co.  v.  Eeich,  supra, 
in  discussing  this  question,  "  which  fixes  liability  upon  the  land- 
owner because  the  child  is  attracted,  lies  in  the  assumption  that  what 
operates  as  a  temptation  to  a  person  of  immature  mind  is,  in  effect, 
an  invitation.  Such  an  assumption  is  not  warranted.  As  said  by 
Mr.  Justice  Holmes  (now  a  member  of  the  Supreme  Court  of  the 
United  States),  in  Holbrook  v.  Aldrich,  168  Mass.  16,  'Temptation 
is  not  always  invitation.  As  the  common  law  is  understood  by  the 
most  competent  authorities,  it  does  not  excuse  a  trespass  because  there 
is  a  temptation  to  commit  it '  —  or  hold  parties  bound  to  contemplate 
infraction  of  property  rights  because  the  temptation  to  untrained 
minds  to  infringe  them  might  have  been  foreseen." 

No  landowner  supposes  for  a  moment  that  by  growing  fruit  trees 
near  the  highway,  or  where  boys  are  accustomed  to  play,  however 
much  thoy  may  be  tempted  to  climb  the  trees  and  take  his  fruit,  he 
is  extending  to  them  an  invitation  to  do  so,  or  that  thoy  would  be 
any  the  less  trespassers  if  they  did  go  into  his  orchard  because  of  the 
temptation.  No  one  believes  that  a  landowner,  as  a  matter  of  fact, 
wliether  a  railroad  company  or  a  private  inrlividual,  who  makes 
changes  on  his  own  land  in  the  course  of  a  beneficial  user,  which 


CHAP.    III.]  NEGLIGENCE.  149 

changes  are  reasonable  and  lawful,  but  which  are  attractive  to  chil- 
dren and  may  expose  them  to  danger  if  they  should  yield  to  the  at- 
traction, is  by  that  act  alone  inviting  them  upon  his  premises. 

This  doctrine  of  constructive  invitation  is  not  sustained,  as  it  seems 
to  us,  by  the  English  cases  cited  to  sustain  it,  and  has  been  utterly 
rejected  by  the  highest  courts  of  New  Hampshire,  Massachusetts,  New 
York,  New  Jersey,  Rhode  Island,  Michigan  and  West  Virginia.  In 
several  other  States  it  is  limited  in  its  operation  to  turntable  cases. 
See  Frost  v.  Eastern,  &c.,.Ey.  Co.,  supra;  Daniels  v.  N.  Y.  &  N.  E.  R. 
Co.,  supra;  Walsh  v.  Fitchburg,  &c.,  R.  Co.,  supra;  Delaware,  &e., 
Ry.  Co.  V.  Reich,  supra;  Ryan  v.  Towar,  supra;  Paolino  v.  McKen- 
dall,  supra;  Dobbins  v.  Missouri,  &c.,  Ry.  Co.  supra;  Savannah,  &c., 
Ry.  Co.  V.  Beavers,  supra. 

The  maxim,  "  Sic  utere  tuo  ut  alienum  non  laedas,"  has  been 
quoted  in  some  of  the  "  Turntable  Cases,"  and  relied  on  as  affording 
a  decisive  reason,  or  ground,  for  establishing  a  duty  upon  the  railway 
company,  and  as  per  se  justifying  a  recovery  against  it.  There  may 
be  more,  but  there  is  one  conclusive  answer  to  the  argument  based 
on  that  maxim,  and  that  is,  that  it  refers  only  to  acts  of  the  land- 
owner, the  effects  of  which  extend  beyond  the  limits  of  his  property. 

In  Deane  v.  Clayton,  7  Taunton  489,  Gibbs,  J.,  said :  "  I  know 
it  is  a  rule  of  law  that  I  must  occupy  my  own  so  as  to  do  no  harm 
to  others,  but  it  is  their  legal  rights  only  that  I  am  bound  not  to  dis- 
turb; subject  to  this  qualification  I  may  occupy  or  use  my  own  as 
I  please.  It  is  the  rights  of  others,  and  not  their  security  against  the 
consequences  of   (their)   wrongs  that  I  am  bound  to  regard." 

In  Knight  v.  Albert,  6  Pa.  St.  472,  where  an  effort  was  made  to 
apply  the  maxim  to  sustain  an  action  by  the  owner  of  cattle  which 
had  trespassed  upon  the  lands  of  another  and  had  been  injured  by 
reason  of  the  unsafe  condition  of  the  property.  Chief  Justice  Gibson 
said:  "A  man  must  use  his  property  so  as  not  to  incommode  his 
neighbor;  but  the  maxim  extends  only  to  neighbors  who  do  not,  un- 
invited, interfere  with  it  or  enter  upon  it.  .  .  .  If  it  were  not  so, 
a  proprietor  could  not  sink  a  well,  or  a  saw  pit,  dig  a  ditch  or  mill- 
race,  or  open  a  stone  quarry,  or  a  manhole  on  his  land,  except  at  the 
risk  of  being  made  responsible  for  consequential  damage  from  it 
which  would  be  a  most  unreasonable  requirement."  Ryan  v.  Towar, 
supra.  See  article  by  Judge  Smith  on  Landowners'  Liability  to  Chil- 
dren, etc.,  11  Harvard  Law  Review  349-373,  434,  448,  in  which  there 
is  a  valuable  discussion  of  that  whole  subject. 

Upon  neither  of  the  grounds  relied  on  do  we  think  that  the  com- 
mon law  makes  it  the  duty  of  a  landowner  to  have  his  premises  in 
a  safe  condition  for  the  uninvited  entry  of  adults  or  children,  nor 
to  take  affirmative  measures  to  keep  them  off  of  his  premises  or  to 
protect  them  after  entry;  and  this  view  is  strengthened  by  the  fact 
that  so  many  of  the  courts  which  have  adopted  the  doctrine  of  the 


150  WALKER    V.    POTOMAC,    ETC.,    R.    CO.  [CHAP.    III. 

*'  Turntable  Cases "  restrict  it  as  far  as  possible  to  turntables,  and 
refuse  to  follow  it  to  its  natural  and  logical  consequences.  For  if  it  be 
a  rule  of  the  common  law  that  a  landowner,  who,  in  the  reasonable  and 
lawful  use  of  his  propert}',  makes  changes  thereon  which  have  the 
double  effect  of  attracting  young  children  to  the  land  and  at  the  same 
time  exposing  them  to  serious  danger,  is  guilty  of  negligence  unless  he 
exercises  reasonable  care  for  their  safety,  either  in  keeping  them  off 
the  land,  or  in  protecting  them  after  their  entry  thereon,  the  rule 
would  apply  not  only  to  railroad  companies  and  their  turntables,  but 
to  all  landowners  who  in  the  use  of  their  land  maintain  upon  it  dan- 
gerous machiner}^,  or  conditions  which  present  a  like  attractiveness  and 
temptation  to  children.  The  common  law  applies  alike  to  all  land- 
owners under  like  conditions,  and  it  would  be  an  anomaly  to  hold  that 
a  doctrine  or  rule  of  the  common  law,  which  had  its  origin  before  there 
were  either  railroads  or  turntables,  applies  only  to  railroad  companies 
in  the  use  of  their  lands,  upon  which  they  have  dangerous  machinery. 
While  the  courts  should  and  do  extend  the  application  of  the  common 
law  to  the  new  conditions  of  advancing  civilization,  they  may  not 
create  a  new  principle  or  abrogate  a  known  one.^  If  new  conditions 
cannot  be  properly  met  by  the  application  of  existing  laws,  the  sup- 
plying of  the  needed  laws  is  the  province  of  the  Legislature,  and  not 
of  the  judicial  department  of  the  government.  Connelly  v.  Western 
Tel.  Co.,  100  Va.  59.  The  Legislature  can  change  the  common  law 
as  far  as  may  be  necessary  to  regulate  the  use  of  turntables  and  other 
dangerous  appliances,  and  leave  untouched  the  common  law  rights  of 
the  ordinary  landed  proprietor. 

The  Court  of  Appeals  of  New  Jersey,  in  refusing  to  follow  the  doc- 
trine of  the  "  Turntable  Cases,"  said,  that  the  doctrine  would  require 
a  similar  rule  to  be  applied  to  all  owners  and  occupiers  of  land  in  re- 
spect to  any  structure,  machinery,  or  implement  maintained  by  them, 
which  presented  a  like  attractiveness  and  furnished  a  like  temptation 
to  children.  "  He  who  erects  a  tower  capable  of  being  climbed,  and 
maintains  thereon  a  windmill  to  pump  water;  ...  he  who  leaves 
his  mowing  machine,  or  dangerous  agricultural  implement,  in  his 
fields ;  he  who  maintains  a  pond  in  which  boys  may  swim  in  summer, 
and  on  which  they  may  skate  in  winter;  would  seem  to  be  amenable 
to  this  rule  of  duty.  Climbing,  playing  at  work,  swimming  and  skat- 
ing, are  attractions  almost  irresistible  to  children,  and  every  land- 
owner or  occupier  may  well  believe  that  such  attractions  will  lead 
young  children  into  danger.  Many  other  cases  of  like  character  might 
be  imagined.  In  all  of  them  the  'Turntable  Cases,'  if  correct,  would 
charge  tbe  owner  .  .  .  with  the  duty  of  taking  care  to  preserve 
young  children  thus  tempted  on  his  farm  from  harm.  The  fact  that 
the  doctrine  extends  to  such  a  variety  of  cases,  and  to  cases  in  respect 
to  which  the  idea  of  such  a  duty  is  novel  and  startling,  causes  strong 

»  See  BIrcIow  on  Torts,  8th  ed.  ch.  1,  §  1.     Centralization  and  the  Law,  Lecture  1. 


CHAP.   III.]  NEGLIGENCE.  151 

suspicions  of  the  correctness  of  the  doctrine,  and  leads  us  to  question 
it."  Delaware,  &c.,  E.  Co.  v.  Eeich,  supra;  Turess  v.  N.  Y.,  &c.,  R. 
Co.,  61  N.  J.  L.  314;  Uttermohlen  v.  Boggs  Run,  &c.,  Co.,  supra. 

The  Supreme  Court  of  Minnesota,  which  was  one  of  the  first  to 
give  its  adherence  to  the  turntable  doctrine  (Kiffe  v.  Milwaukee,  &c., 
Ry.  Co.,  21  Minn.  207),  in  the  subsequent  case  of  Stendal  v.  Boyd, 
73  Minn.  53,  through  its  Chief  Justice,  said :  "  The  doctrine  of  the 
*  Turntable  Cases '  is  an  exception  to  the  rules  of  non-liability  of  a 
landowner  for  accidents  from  visible  causes  to  trespassers  on  his 
premises,  and  if  the  exception  is  to  be  extended  to  this  case  (a  dan- 
gerous excavation  filled  with  water  on  a  city  lot,  in  which  a  little  boy 
had  been  drowned),  then  the  rule  of  non-liability  as  to  trespassers 
must  be  abrogated  as  to  children,  and  every  owner  of  property  must 
at  his  peril  make  his  premises  child-proof." 

We  will  conclude  this  opinion  with  the  following  extract  from  the 
very  able  opinion  of  Judge  Denman,  speaking  for  the  Supreme  Court 
of  Texas  (another  of  the  states  which  had  followed  the  turntable  doc- 
trine), in  the  case  of  Dobbins  v.  Missouri,  &c.,  Ry.  Co.,  41  S.  W.  62, 
as  expressing  our  views :  "  The  difficulty,"  he  said,  "  about  those  cases 
("Turntable  Cases")  is,  that  they  either  impose  upon  owners  of 
property  a  duty  not  before  imposed  by  law,  or  they  leave  to  a  jury 
to  find  legal  negligence  in  cases  where  there  is  no  legal  duty  to  exer- 
cise care.  In  those  cases  the  courts  yielding  to  the  hardships  of  indi- 
vidual instances  where  owners  have  been  guilty  of  moral,  though  not 
legal  wrongs,  in  permitting  attractive  and  dangerous  turntables  and 
water  holes  to  remain  unguarded  on  their  premises  in  populous  cities, 
to  the  destruction  of  little  children,  have  passed  beyond  the  safe 
and  ancient  landmarks  of  the  common  law,  and  assumed  legisla- 
tive functions,  imposing  a  duty  where  none  before  existed.  As  a 
police  measure  the  law-making  power  may,  and  doubtless  should,  with- 
out unduly  interfering  with  or  burdening  private  ownership  of  land, 
compel  the  inclosure  of  pools,  etc.,  situated  on  private  property  in  such 
close  proximity  to  thickly  settled  places  as  to  be  unusually  attractive 
and  dangerous,  and  impose  criminal  or  civil  liability,  or  both,  for  fail- 
ure to  comply  with  the  requirements  of  such  law.  When  such  a  duty 
is  imposed  the  courts  may  properly  enforce  it  or  allow  damages  for 
its  breach,  but  not  before." 

We  are  of  opinion  that  there  is  no  error  in  the  judgment  complained 
of,  and  that  it  should  be  affirmed. 

Affirmed. 


152  INDERMAUR   V.    DAMES.  [CHAP.    III. 


INDEEMAUR   v.   DAMES. 

Exchequer  and  Exchequer  Chamber  of  Eno;land,  1866,  1867.    L.  R.  1  C.  P.  274; 

L.  R.  2  C.  P.  318. 

Action  for  damages  alleged  to  be  due  to  negligence. 

The  facts  are  as  follows:  The  plaintiff,  who  was  a  journeyman 
gas-fitter,  was,  at  the  time  of  the  accident  hereinafter  mentioned, 
in  the  employ  of  one  Diickham,  a  gas  engineer  and  fitter,  who  was 
the  patentee  of  an  improved  self-acting  gas-regulator.  The  defend- 
ant was  a  sugar-refiner,  having  extensive  premises  in  Whitechapel.  In 
June,  1864,  Duckham,  through  one  Hargreaves,  his  agent,  agreed  with 
the  defendant,  who  was  necessarily  a  large  consumer  of  gas,  to  fit 
up  on  his  premises  two  of  his  regulators,  upon  the  terms  mentioned 
in  the  following  memorandum :  "  I  hereby  agree  to  attach  two  of  my 
patent,  self-acting  gas-regulators  to  your  meter  in  area;  and,  should 
I  fail  to  effect  a  saving  of  from  15  to  30  per  cent  on  your  previous 
consumption,  I  will  remove  the  regulators,  and  restore  the  fittings 
at  my  own  expense.  Should  I  effect  such  saving,  the  machines  will 
be  considered,  after  test,  as  purchased,  and  a  three-years  guarantee 
given  with  them.    The  price  to  be  (two  2-inch),  £18." 

On  Saturday,  the  25th  of  June,  Hargreaves  went  to  the  defendant's 
premises,  pursuant  to  appointment,  for  the  purpose  of  fixing  the 
apparatus.  He  was  accompanied  by  the  plaintiff  and  another  work- 
man in  Duckham's  employ,  named  Bristow,  and  a  lad.  The  plaintiff, 
however,  not  being  upon  that  occasion  quite  sober,  Mr.  Woods,  the 
defendant's  manager,  would  not  allow  him  to  go  upon  the  premises, 
and  the  regulators  were  fixed  by  Bristow,  assisted  by  the  lad,  and  the 
work  was  duly  completed.  In  order  to  test  the  regulators,  and  ascer- 
tain that  they  answered  the  warranty  as  to  saving  in  the  consumption 
of  gas,  it  was  necessary  for  the  workmen  of  the  patentee  to  inspect 
every  burner  on  the  premises,  to  see  that  they  were  in  a  proper  state. 
Bristow  having  had  to  do  the  work  almost  single-handed,  it  was  too 
late  to  make  the  required  inspection  on  the  Saturday  night;  and 
accordingly  Hargreaves  went  to  the  premises  on  the  following  Tues- 
day, accompanied  by  the  plaintiff,  in  order  to  examine  the  several 
burners,  and  so  test  the  apparatus.  Before  going  there  for  that  pur- 
pose, Hargreaves  cautioned  the  plaintiff,  saying:  "Now,  mind,  Inder- 
maur,  sugar-houses  arc  very  peculiar  places;  they  neither  allow 
candles  or  lucifers.  We  must  keep  our  eyes  open.  There  is  a  man 
to  go  wifli  us  with  a  light.  I  shall  follow  the  man,  and  you  keep 
close  to  mv."  When  they  arrived  at  the  premises,  Hargreaves  and  the 
plaintiff,  accompanied  by  one  of  the  defendant's  workmen,  witli  a 
light,  proceeded  to  the  first  floor,  and,  after  examining  one  of  the 
burners,  went  round  to  another  part  of  the  floor  for  the  purpose  of 


CHAP.    III.]  NEGLIGENCE.  153 

inspecting  another.  In  the  mean  time,  the  plaintiff,  who  had  left 
a  pair  of  plyers  at  the  spot  they  first  went  to,  turned  back  to  fetch 
them;  but,  in  returning,  instead  of  going  round  the  way  Hargreaves 
and  the  defendant's  man  had  gone,  he  walked  straight  across  towards 
them,  not  perceiving  an  intervening  hole  in  the  floor,  and  fell  through 
to  the  floor  below,  a  depth  of  about  thirty  feet,  and  fractured  his 
spine. 

The  hole  in  question  was  a  shaft  or  shoot  four  feet  three  inches 
square,  communicating  from  the  basement  to  the  several  floors  of  the 
building.  It  was  fenced  at  each  side,  but  open  back  and  front.  It 
was  necessary  to  the  defendant's  business  to  have  such  a  shaft;  and 
it  was  necessary  that  it  should,  whilst  in  use  for  the  raising  or  lower- 
ing of  goods,  and  occasionally  also  for  purposes  of  ventilation,  be 
open  and  unfenced;  and  there  was  no  evidence  to  show  that  it  was 
usual  in  buildings  of  the  kind  to  adopt  the  precaution  of  fencing  such 
shafts. 

On  the  part  of  the  defendant  it  was  submitted  that  there  was  no 
duty  or  obligation  on  him  to  fence  the  shaft,  and  consequently  no 
cause  of  action;  and  reliance  was  placed  upon  Wilkinson  v.  Fairrie, 
1  H.  &  C.  633 ;  32  L.  J.  Ex.  73.  His  lordship  observed  that,  though 
as  to  persons  employed  in  the  business  there  might  be  no  duty  or  ol)li- 
gation  to  fence,  a  very  different  degree  of  care  might  be  due  in  the 
case  of  a  person  not  so  employed,  but  merely  going  there  for  a  tem- 
porary lawful  purpose,  as  this  plaintiff  did.  He,  however,  reserved 
the  point. 

Several  witnesses  were  then  called  on  the  part  of  the  defendant; 
amongst  others,  Mr.  Woods,  the  defendant's  manager,  who  stated  that 
the  defendant's  premises,  w^hich  had  been  recently  erected,  were  con- 
structed in  the  same  way  as  all  sugar-refineries  were  constructed,  and 
were  not  more  than  ordinarily  dangerous ;  and  that,  if  he  had  known 
that  the  plaintiff  was  coming  to  work  upon  the  premises,  he  would 
not  have  allowed  him  to  do  so. 

The  evidence  as  to  the  number  of  lights  on  the  floor  at  the  time 
of  the  accident  was  conflicting.  The  plaintiff  swore  that  there  were 
only  two;  the  defendant's  witnesses  that  there  were  five,  and  that 
the  light  was  ample.  In  his  summing  up,  the  Lord  Chief  Justice 
stated  in  substance  as  follows :  "  The  plaintiff  has  to  establish  that 
there  was  negligence  on  the  part  of  the  defendant ;  that  the  premises  of 
the  defendant,  to  which  he  was  sent  in  the  course  of  his  business  as  a 
gas-fitter,  were  in  a  dangerous  state;  and  that,  as  between  himself 
and  the  defendant,  there  was  a  want  of  due  and  proper  precaution  in 
respect  of  the  hole  in  the  floor.  To  my  mind,  there  would  not  be  the 
least  symptom  of  want  of  due  care  as  between  the  defendant  and  a 
person  (permanently)  employed  on  his  premises,  because  the  sugar- 
baking  business  requires  a  lift  on  the  premises,  w^hich  must  be  as 
well  known  to  the  persons  employed  there  as  the  top  of  a  staircase 


154  INDERMAUR   V.    DAMES.  [CHAP,    III. 

in  every  dwelling-house.  But  that  which  may  be  no  negligence 
towards  men  ordinarily  employed  upon  the  premises,  may  be  negli- 
gence towards  strangers  lawfully  coming  upon  the  premises  in  the 
course  of  their  business."  And,  after  observing  upon  the  facts,  he 
told  the  jury,  that,  if  they  found  that  there  was  no  negligence  on  the 
part  of  the  defendant,  or  that  there  was  want  of  reasonable  care  on 
the  part  of  the  defendant,  but  that  there  was  also  want  of  reasonable 
care  on  the  part  of  the  plaintiff,  which  materially  contributed  to  the 
accident,  the  plaintiff  was  not  entitled  to  recover;  but  that,  if  there 
was  want  of  reasonable  care  in  the  defendant,  and  no  want  of  rea- 
sonable care  in  the  plaintiff,  then  the  plaintiff  was  entitled  to  a  ver- 
dict. 

The  jury  returned  a  verdict  for  the  plainiff,  damages  £400. 

Cur.  adv.  vult. 

WiLLES,  J.  This  was  an  action  to  recover  damages  for  hurt  sus- 
tained by  the  plaintiff's  falling  down  a  shaft  at  the  defendant's  place 
of  business,  through  the  actionable  negligence,  as  it  was  alleged,  of 
the  defendant  and  his  servants. 

At  the  trial  before  the  Lord  Chief  Justice  at  the  sittings  here  after 
Michaelmas  Term,  the  plaintiff  had  a  verdict  for  £400  damages,  sub- 
ject to  leave  reserved.  A  rule  was  obtained  by  the  defendant,  in  last 
term  to  enter  a  nonsuit,  or  to  arrest  the  judgment,  or  for  a  new  trial 
because  of  the  verdict  being  against  the  evidence.  The  rule  was 
argued  during  the  last  term,  before  Erie,  C.  J.,  Keating  and  Montague 
Smith,  JJ.,  and  myself,  when  we  took  time  to  consider.  We  are  now 
of  opinion  that  the  rule  ought  to  be  discharged. 

It  appears  that  the  defendant  was  a  sugar-refiner,  at  whose  place 
of  business  there  was  a  shaft  four  feet  three  inches  square,  and  twenty- 
nine  feet  three  inches  deep,  used  for  moving  sugar.  The  shaft  was 
necessary,  usual,  and  proper  in  the  way  of  the  defendant's  business. 
Whilst  it  was  in  use,  it  was  necessary  and  proper  that  it  should  be 
open  and  unfenced.  When  it  was  not  in  use,  it  was  sometimes  neces- 
sary, with  reference  to  ventilation,  that  it  should  be  open.  It  was 
not  necessary  that  it  should,  when  not  in  use,  be  unfenced;  and  it 
might  then,  without  injury  to  the  business,  have  been  fenced  by  a 
rail.  Whether  it  was  usual  to  fence  similar  shafts  when  not  in  use, 
did  not  distinctly  appear;  nor  is  it  very  material,  because  such  pro- 
tection was  unquestionably  proper,  in  the  sense  of  reasonable,  with 
reference  to  the  safety  of  persons  having  a  right  to  move  about  upon 
the  floor  where  the  shaft  in  fact  was,  because  in  its  nature  it  formed 
a  pitfall  there.  At  the  time  of  the  accident  it  was  not  in  use;  and  it 
was  open  and  unfenced. 

The  plaintiff  was  a  journeyman  gas-fitter  in  the  employ  of  a 
patentee  who  had  supplied  the  defendant  with  his  patent  gas-regulator, 
to  be  paid  for  u})on  tlie  terms  that  it  effected  a  certain  saving;  and, 
for  tlie  j)urj)().s(;  of  ascertaining  whetlier  such  saving  had  been  effected, 


CHAP.   III.]  NEGLIGENCE.  155 

ih9  plaintiff's  employer  required  to  test  the  action  of  the  regulator. 
He  accordingly  sent  tlie  plaintiff  to  the  defendant's  place  of  business 
for  that  purpose;  and,  whilst  the  plaintiff  was  engaged  upon  the 
floor  where  the  shaft  was,  he  (under  circumstances  as  to  which  the 
evidence  was  conflicting,  but)  accidentally,  and,  as  the  jury  found, 
without  any  fault  or  negligence  on  his  part,  fell  down  the  shaft,  and 
was  seriously  hurt. 

It  was  argued  that,  as  the  defendant  had  objected  to  the  plaintiff's 
working  at  the  place  upon  a  former  occasion,  he  (the  plaintiff)  could 
not  be  considered  as  having  been  in  the  place  with  the  defendant's 
leave  at  the  time  of  tlie  accident;  but  the  evidence  did  not  establish 
a  peremptory  or  absolute  objection  to  the  plaintiff's  being  employed, 
so  as  to  make  the  sending  of  him  upon  the  occasion  of  the  accident 
any  more  against  the  defendant's  will  than  the  sending  of  any  other 
workman;  and  the  employment,  and  the  implied  authority  resulting 
therefrom  to  test  the  apparatus,  were  not  of  a  character  involving 
personal  preference  (dilectus  personee),  so  as  to  make  it  necessary 
that  the  patentee  should  himself  attend.  It  was  not  suggested  that 
the  work  was  not  journeyman's  work. 

It  was  also  argued  that  the  plaintiff  was  at  best  in  the  condition 
of  a  bare  licensee  or  guest  who,  it  was  urged,  is  only  entitled  to  use 
the  place  as  he  finds  it,  and  whose  complaint  may  be  said  to  wear 
the  color  of  ingratitude,  so  long  as  there  is  no  design  to  injure  him. 
See  Hounsell  v.  Smyth,  7  C.  B.  n.  s.  731;   29  L.  J.  C.  P.  203.^ 

We  think  this  argument  fails,  because  the  capacity  in  which  the 
plaintiff  was  there  was  that  of  a  person  on  lawful  business,  in  the 
course  of  fulfilling  a  contract  in  which  both  the  plaintiff  and  the  de- 
fendant had  an  interest,  and  not  upon  bare  permission.  No  sound 
distinction  was  suggested  between  the  case  of  the  servant  and  the  case 
of  the  employer,  if  the  latter  had  thought  proper  to  go  in  person; 
nor  between  the  case  of  a  person  engaged  in  doing  the  work  for  the 
defendant  pursuant  to  his  employment  and  that  of  a  person  testing 
the  work  which  he  had  stipulated  with  the  defendant  to  be  paid  for 
if  it  stood  the  test,  whereby  impliedly  the  workman  was  to  be  allowed 
an  onstand  to  apply  that  test,  and  a  reasonable  opportunity  of  doing 
so.  Any  duty  to  enable  the  workman  to  do  the  work  in  safety  seems 
equally  to  exist  during  the  accessary  employment  of  testing:  and 
any  duty  to  provide  for  the  safety  of  the  master  workman  seems 
equally  owing  to  the  servant  workman  whom  he  may  lawfully  send 
in  his  place. 

It  is  observable  that,  in  the  case  of  Southcote  v.  Stanley,  1  H.  &  N". 
247 ;  25  L.  J.  Ex.  339,  upon  which  much  reliance  was  properly  placed 
for  the  defendant,  Alderson,  B.,  drew  the  distinction  between  a  bare 
licensee  and  a  person  coming  on  business,  and  Bramwell,  B.,  between 
active  negligence  in  respect  of  unusual  danger  known  to  the  host  and 

^  But  cf.   Davis  V.  Central    Cong.    Society,   post,    p.    159. 


156  INDERMAUR   V.    DAMES.  [CHAP.    III. 

not  to  tlie  guest,  and  a  bare  defect  of  construction  or  repair,  which 
the  host  was  only  negligent  in  not  finding  out  or  anticipating  the  con- 
sequence of.  There  is  considerable  resemblance,  though  not  a  strict 
analogy,  between  this  class  of  cases  and  those  founded  upon  the  rule 
as  to  voluntary  loans  and  gifts,  that  there  is  no  remedy  against  the 
lender  or  giver,  for  damage  sustained  from  the  loan  or  gift,  except 
in  case  of  unusual  danger  known  to  and  concealed  by  the  lender  or 
giver.  Macarthy  v.  Younge,  6  H.  &  N.  329;  30  L.  J.  Ex.  227,  The 
case  of  the  carboy  of  vitriol,  Farrant  v.  Barnes,  11  C.  B.  n.  s.  553; 
31  L.  J.  C.  P.  237,  was  one  in  which  this  court  held  answerable  the 
bailor  of  an  unusually  dangerous  chattel,  the  quality  of  which  he 
knew,  but  he  did  not  tell  the  bailee,  who  did  not  know  it,  and  who, 
as  a  proximate  consequence  of  his  not  knowing,  and  without  any  fault 
on  his  part,  suffered  damage. 

The  cases  referred  to  as  to  the  liability  for  accidents  to  servants 
and  persons  employed  in  other  capacities  in  a  business  or  profession 
which  necessarily  and  obviously  exposes  them  to  danger,  as  in  Seymour 
V.  Maddox,  16  Q.  B.  326;  20  L.  J.  Q.  B.  327,  also  have  their  special 
reasons.  The  servant  or  other  person  so  employed  is  supposed  to 
undertake  not  only  all  the  ordinary  risks  of  the  employment  into 
which  he  enters,  but  also  all  extraordinary  risks  which  he  knows  of 
and  thinks  proper  to  incur,  including  those  caused  by  the  misconduct 
of  his  fellow-servants,  not,  however,  including  those  which  can  be 
traced  to  mere  breach  of  duty  on  the  part  of  the  master.  In  the  case 
of  a  statutory  duty  to  fence,  even  the  knowledge  and  reluctant  sub- 
mission of  the  servant  who  has  sustained  an  injury  are  held  to  be 
only  elements  in  determining  whether  there  has  been  contributory 
negligence :  how  far  this  is  the  law  between  master  and  servant,  where 
there  is  danger  known  to  the  servant,  and  no  statute  for  his  protection, 
we  need  not  now  consider,  because  the  plaintiff  in  this  case  was  not 
a  servant  of  the  defendant,  but  the  servant  of  the  patentee.  The 
question  was  adverted  to,  but  not  decided,  in  Clarke  v.  Holmes,  7  H. 
&  X.  937;   31  L.  J.  Ex.  356. 

The  authorities  respecting  guests  and  other  bare  licensees,  and  those 
respecting  servants  and  others  who  consent  to  incur  a  risk,  being 
therefore  inapplicable,  we  are  to  consider  what  is  the  law  as  to  the 
duty  of  the  occupier  of  a  building  with  reference  to  persons  resorting 
thereto  in  the  course  of  business,  upon  his  invitation,  express  or  im- 
plied. The  common  case  is  that  of  a  customer  in  a  shop :  but  it  is 
obvious  that  this  is  only  one  of  a  class;  for  whether  the  customer  is 
actually  chafTfriug  at  the  time,  or  actually  buys  or  not,  he  is,  accord- 
ing to  an  undoubted  course  of  authority  and  practice,  entitled  to  the 
exercise  of  roasona])le  care  by  the  occupier  to  prevent  damage  from 
unusual  danger,  of  which  the  occupier  knows  or  ought  to  know,  such 
as  a  trap-door  left  open,  un fenced  and  unlighted.  Lancaster  Canal 
Company  v.  Parnaby,  11  Ad.  &  E.  223;    3  P.  &  D.  162;    per  cur., 


CHAP.    III.]  NEGLIGENCE.  157 

Chapman  v.  Eothwell,  E.  B.  &  E.  168;  27  L.  J.  Q.  B.  315,  wliere 
Soiithcote  V  Stanley,  1  H.  &  N.  247;  25  L.  J.  Ex.  339,  was  cited, 
and  the  Lord  Chief  Justice,  then  Erie,  J.,  said :  "  The  distinction  is 
between  the  case  of  a  visitor  (as  the  plaintiff  was  in  Southcote  v.  Stan- 
ley), who  must  take  care  of  himself,  and  a  customer,  who,  as  one  of 
the  public,  is  invited  for  the  purposes  of  business  carried  on  by  the 
defendant."  This  protection  does  not  depend  upon  the  fact  of  a  con- 
tract being  entered  into  in  the  way  of  the  shopkeeper's  business  during 
the  stay  of  the  customer,  but  upon  the  fact  that  the  customer  has 
come  into  the  shop  in  pursuance  of  a  tacit  invitation  given  by  the 
shopkeeper,  with  a  view  to  business  which  concerns  himself.  And 
if  a  customer  were,  after  buying  goods,  to  go  back  to  the  shop  in  order 
to  complain  of  the  quality,  or  that  the  change  was  not  right,  he  would 
be  just  as  much  there  upon  business  which  concerned  the  shopkeeper, 
and  as  much  entitled  to  protection  during  this  accessary  visit,  though 
it  might  not  be  for  the  shopkeeper's  benefit,  as  during  the  principal 
visit,  which  was.  And  if,  instead  of  going  himself,  the  customer  were 
to  send  his  servant,  the  servant  would  be  entitled  to  the  same  consider- 
ation as  the  master.  The  class  to  which  the  customer  belongs  includes 
persons  who  go  not  as  mere  volunteers,  or  licensees,  or  guests,  or  serv- 
ants, or  persons  whose  employment  is  such  that  danger  may  be  con- 
sidered as  bargained  for,  but  who  go  upon  business  which  concerns 
the  occupier,  and  upon  his  invitation,  express  or  implied. 

And,  with  respect  to  such  a  visitor  at  least,  we  consider  it  settled 
law  that  he,  using  reasonable  care  on  his  part  for  his  own  safety,  is 
entitled  to  expect  that  the  occupier  shall  on  his  part  use  reasonable 
care  to  prevent  damage  from  unusual  danger  which  he  knows  or  ought 
to  know;  and  that,  where  there  is  evidence  of  neglect,  the  question 
whether  such  reasonable  care  has  been  taken,  by  notice,  lighting, 
guarding,  or  otherwise,  and  whether  there  was  contributory  negligence 
in  the  sufferer,  must  be  determined  by  a  jury  as  matter  of  fact. 

In  the  case  of  Wilkinson  v.  Fairrie",  1  H.  &  C.  633 ;  32  L.  J.  Ex. 
73,  relied  upon  for  the  defendant,  the  distinction  was  pointed  out 
between  ordinary  accidents,  such  as  falling  down  stairs,  which  ought 
to  be  imputed  to  the  carelessness  or  misfortune  of  the  sufferer,  and 
accidents  from  unusual,  covert  danger,  such  as  that  of  falling  down 
into  a  pit. 

It  was  ably  insisted  for  the  defendant  that  he  could  only  be  bound 
to  keep  his  place  of  business  in  the  same  condition  as  other  places 
of  business  of  the  like  kind,  according  to  the  best  known  mode  of 
construction.  And  this  argument  seems  conclusive  to  prove  that 
there  was  no  absolute  duty  to  prevent  danger,  but  only  a  duty  to  make 
the  place  as  little  dangerous  as  such  a  place  could  reasonably  be,  hav- 
ing regard  to  the  contrivances  necessarily  used  in  carrying  on  the 
business.  But  we  think  the  argument  is  inapplicable  to  the  facts  of 
this  case:    first,  because  it  was  not  shown,  and  probably  could  not 


158  INDEEMAUR   V.    DAMES.  [CHAP.    III. 

be,  that  there  was  any  usage  never  to  fence  shafts;  secondly,  because 
it  was  proved  that,  when  the  shaft  was  not  in  use,  a  fence  might  be 
resorted  to  without  inconvenience;  and  no  usage  could  establish  that 
what  was  in  fact  necessarily  dangerous  was  in  law  reasonably  safe, 
as  against  persons  towards  whom  there  was  a  duty  to  be  careful. 

Having  fully  considered  the  notes  of  the  Lord  Chief  Justice,  we 
think  there  was  evidence  for  the  jury  that  the  plaintiff  was  in  the 
place  by  the  tacit  invitation  of  the  defendant,  upon  business  in  which 
he  was  concerned;  that  there  was  by  reason  of  the  shaft  unusual 
danger,  known  to  the  defendant;  and  that  the  plaintiff  sustained 
damage  by  reason  of  that  danger,  and  of  the  neglect  of  the  defendant 
and  his  servants  to  use  reasonably  sufficient  means  to  avert  or  warn 
him  of  it :  and  we  cannot  say  that  the  proof  of  contributory  negli- 
gence was  so  clear  that  we  ought  on  this  ground  to  set  aside  the  ver- 
dict of  the  Jury. 

As  for  the  argument  that  the  plaintiff  contributed  to  the  accident 
by  not  following  his  guide,  the  answer  may  be,  that  the  guide,  knowing 
the  place,  ought  rather  to  have  waited  for  him;  and  this  point,  as 
matter  of  fact,  is  set  at  rest  by  the  verdict. 

For  these  reasons,  we  think  there  was  evidence  of  a  cause  of  action 
in  respect  of  which  the  jury  were  properly  directed;  and,  as  every 
reservation  of  leave  to  enter  a  non-suit  carries  with  it  an  implied 
condition  that  the  court  may  amend,  if  necessary,  in  such  a  manner 
as  to  raise  the  real  question,  leave  ought  to  be  given  to  the  plaintiff, 
in  the  event  of  the  defendant  desiring  to  appeal  or  to  bring  a  writ 
of  error,  to  amend  the  declaration  by  stating  the  facts  as  proved,  — 
in  effect,  that  the  defendant  was  the  occupier  of  and  carried  on  busi- 
ness at  the  place;  that  there  was  a  shaft,  very  dangerous  to  persons 
in  the  place,  which  the  defendant  knew  and  the  plaintiff  did  not 
know;  that  the  plaintiff,  by  invitation  and  permission  of  the  defend- 
ant, was  there  near  the  shaft,  upon  business  of  the  defendant,  in  the 
way  of  his  own  craft  as  a  gas-fitter,  for  hire,  &c.,  stating  the  circum- 
stances, the  negligence,  and  that  by  reason  thereof  the  plaintiff  was 
injured.  The  details  of  the  amendment  can,  if  necessary,  be  settled 
at  chambers. 

As  to  the  motion  to  arrest  the  judgment,  for  the  reasons  already 
given,  and  upon  condition  that  an  amendment  is  to  be  made  if  and 
when  required  by  the  defendant,  it  will  follow  the  fate  of  the  motion 
to  enter  a  nonsuit.  The  other  arguments  for  the  defendant,  to  which 
we  have  not  particularly  adverted,  were  no  more  than  objections  to 
the  verdict  as  being  against  the  evidence :  but  it  would  be  wrong  to 
grant  a  new  trial  without  a  reasonable  expectation  that  another  jury 
Tniglit  take  a  different  view  of  the  facts;  and,  as  the  Lord  Chief 
Justice  does  not  express  any  dissatisfaction  with  the  verdict,  the  rule 
upon  this,  the  only  remaining  ground,  must  also  be  discharged. 

Rule  discharged. 


CHAP.   III.]  NEGLIGENCE.  159 

The  case  was  now  carried  by  appeal  to  the  Exchequer  Chamber, 
where  the  judgment  above  pronounced  was  affirmed.  L.  R.  2  C.  P. 
317. 


DAVIS  V.  CENTRAL  CONGREGATIONAL  SOCIETY. 

Supreme  Court  of  Massachusetts,  September,  1880.     129  Mass.  367. 

Tort  for  personal  injuries  sustained  by  the  plaintiff,  by  falling 
over  a  wall  on  the  defendant's  premises.  Trial  in  the  Superior  Court, 
before  Gardner,  J.,  who  directed  a  verdict  for  the  defendant,  and 
reported  the  case  for  the  determination  of  this  court,  in  substance 
as  follows : 

On  October  15,  1873,  the  defendant,  a  duly  incorporated  religious 
society,  was  the  owner  of  a  lot  of  land,  with  a  meeting-house  thereon, 
bounded  northeasterly  by  Seaverns  Avenue,  and  southeasterly  by 
Elm  Street,  both  public  streets  in  Boston.  A  circular  driveway  or 
path,  about  eighteen  feet  wide,  ran  from  near  the  corner  of  said 
street  and  avenue  to  the  front  doors  of  the  meeting-house,  and  round  to 
the  street.  This  path  was  covered  with  concrete,  and  was  smooth  and 
level,  and  was  the  only  means  provided  for  access  to  and  from  Elm 
Street  and  the  front  doors  of  the  meeting-house.  The  society  main- 
tained religious  worship  according  to  the  usages  of  Congregational 
societies  and  churches.  The  church  worshipping  in  the  meeting- 
house was  a  voluntary  association,  united  together  by  a  covenant  and 
articles  of  belief,  and  was  a  distinct  body  from  the  society,  and  had 
no  control  of  the  premises.  Joseph  B.  Clark  was  the  settled  pastor 
over  the  society  and  church,  but  was  not  a  member  of  the  society. 
The  care  and  control  of  the  premises  were  intrusted  to  a  prudential 
committee  of  five,  chosen  by  the  society.  The  pastor  and  deacons  of 
the  church  had  the  right  to  grant  the  use  of  the  meeting-house  for 
religious  meetings  and  services  not  inconsistent  with  the  rights  and 
purposes  of  the  society. 

The  plaintiff,  in  order  to  show  that  she  was  invited  to  attend  a 
meeting  held  at  the  meeting-house,  offered  evidence  tending  to  prove 
that  a  meeting  of  the  Suffolk  South  Conference  of  Churches  was 
held  on  the  afternoon  and  evening  of  October  15,  1873,  in  the  defend- 
ant's meeting-house ;  that  this  conference  was  a  voluntary  association 
of  thirty  or  thirty-four  Congregational  churches  in  Boston  and  vicin- 
ity, including  the  church  worshipping  with  the  defendant  society,  and 
the  church  in  Brighton,  of  which  the  plaintiff  was  member ;  that  this 
conference  was  a  distinct  organization  from  the  several  churches 
composing  it,  having  its  clerk,  or  scribe,  and  other  officers;  that,  by 
the  usages  of  this  association,  its  meetings  were  held  once  in  six 
months  with  the  different  churches  composing  it,  each  church  taking 


160  DAVIS    V.    CONGREGATIONAL   SOCIETY.  [CHAP.    III. 

its  turn,  the  place  of  the  next  meeting  being  determined  at  the  confer- 
ence last  held;  that  the  meeting  of  the  conference  to  be  held  in  Octo- 
ber, 1873,  should,  by  said  usages,  have  been  held  with  one  of  the  other 
churches,  and  was  actually  appointed  to  be  held  at  some  other  church, 
and  not  with  the  church  worshipping  with  the  defendant,  but,  the 
church  at  which  the  meeting  was  to  be  held  being  unable  to  have  the 
conference,  Joseph  B.  Clark,  without  consultation  with  the  prudential 
committee  or  other  officers  of  the  defendant  society,  or  with  the 
deacons  of  the  church,  and  without  any  consent  on  the  part  of  the 
defendant,  except  such  as  may  be  inferred  from  the  facts  herein 
stated,  gave  permission  to  the  scribe  or  other  proper  officers  of  the 
conference  to  hold  the  conference  meeting  at  the  defendant's  meet- 
ing-house during  the  afternoon  and  evening  of  October  15,  1873,  and 
the  scribe,  acting  upon  this  permission,  sent  notices  of  the  meeting 
to  the  several  churches;  that,  in  accordance  with  the  usages  of  the 
conference,  the  notice  contained  a  request  that  each  church  should 
choose  two  delegates  to  attend  the  meeting,  and  also  contained  a 
general  invitation  for  the  other  members  of  the  said  several  churches 
to  attend;  that  this  notice  was  given  from  the  pulpit  of  the  church 
in  Brighton,  of  which  the  plaintiff  was  a  member,  and  in  like  manner 
in  the  defendant's  meeting-house  on  the  Sunday  next  before  the 
meeting. 

Evidence  was  also  offered  tending  to  prove  that  it  was  the  custom 
for  members  other  than  delegates  to  attend  such  meetings;  that  the 
delegates  and  officers  of  the  conference  when  assembled  had  charge  of 
the  meeting,  voted,  and  transacted  such  business  and  conducted  such 
services  as  came  before  the  meeting;  and  that  the  plaintiff  was  not  a 
delegate  to  the  meeting.  There  was  evidence  tending  to  show  that 
some  of  the  members  of  the  defendant's  prudential  committee,  and 
some  or  all  of  the  deacons,  were  present  when  the  notice  of  the  meet- 
ing was  given  in  the  defendant's  meeting-house,  and  that  no  action 
was  ever  taken  by  the  defendant  society  or  its  officers  as  to  objecting 
or  consenting  to  the  meeting  being  held  according  to  said  notice. 

The  plaintiff  testified  that  on  October  15,  1873,  in  pursuance  of  the 
invitation  or  notice  aforesaid,  and  the  custom  aforesaid,  she  went 
from  her  house  in  Brighton  to  attend  the  meeting;  that  she  had  no 
business  with  the  defendant  society  or  its  officers,  and  was  not  a  dele- 
gate; that  she  attended  for  her  own  benefit  and  as  a  visitor,  and  that 
she  had  been  in  the  ha])it  of  attending  conference  meetings  with 
which  her  church  was  connected  for  forty  years;  that  she  was  never 
before  at  the  defendant's  meeting-house,  and  in  going  had  to  inquire 
the  way  there;  tliat  at  about  three  o'clock  that  afternoon  she  entered 
the  circular  path  at  the  corner  of  said  avenue  and  street,  and  passed 
through  the  same  and  entonMl  tbo  front  door  of  the  meeting-house; 
that  there  was  no  difficulty  in  passing  over  the  walk  safely  in  tlie  day- 
time;   tliat  hIic  did  not  notice  the  wall  or  eiiihankmont  in  tlie  after- 


CHAP.   III.]  NEGLIGENCE.  161 

noon,  though  there  was  nothing  to  prevent  her  seeing  the  same  if 
elie  had  looked,  and  that  she  remained  within  the  meeting-house 
throughout  the  entire  service,  until  the  close  thereof,  at  nine  o'clock 
in  the  evening;  that,  at  the  close  of  the  meeting  in  the  evening, 
the  plaintiff  passed  out  of  the  front  door,  and  as  she  was  walking 
along  the  path  towards  the  street,  in  the  manner  in  which  she  usually 
walked,  "  not  fast,"  she  struck  her  right  foot  or  leg  against  the  wall, 
at  a  point  where  it  was  seven  or  eight  inches  high,  and  fell  over  the 
wall  on  to  the  sidewalk,  and  was  injured;  that  said  path  at  the  time 
was  filled  with  people  passing  out,  and  there  were  many  persons  before 
and  behind  her,  and  on  her  right  hand;  that  she  did  not  see  the  wall 
before  she  fell.  Three  friends  who  were  with  her,  testified  that 
they  did  not  see  the  wall,  and  neither  of  them  hit  or  walked  against 
it. 

The  plaintiff,  in  order  to  show  that  the  defendant  was  guilty  of 
negligence  in  the  construction  and  maintenance  of  the  path,  and  that 
the  same  was  dangerous,  offered  evidence  tending  to  prove  that  there 
was  a  bank  wall  two  and  one-half  feet  high,  extending  the  whole 
length  of  the  northeasterly  side  of  the  defendant's  land,  the  face  of 
which  wall  formed  the  boundary  line  between  the  land  and  Seaverns 
Avenue ;  that  the  top  of  the  wall  was  eighteen  inches  wide,  and  level ; 
that  the  northeasterly  line  of  the  path,  from  the  front  door  of  the 
meeting-house  to  the  point  of  its  conjunction  with  said  wall,  was  a 
curved  line;  that  at  the  point  of  conjunction  the  walk  and  top 
of  the  wall  formed  a  level  surface;  that  from  that  point  to  the  en- 
trance to  the  premises  the  line  of  the  path  was  a  straight  and  descend- 
ing line  along  the  inner  side  of  the  wall,  and  formed  an  inclined  plane ; 
that  at  the  point  at  which  the  plaintiff  fell  over  the  wall,  the  top  of 
the  wall  was  seven  or  eight  inches  higher  than  the  path ;  that,  at  the 
time  of  the  accident,  there  was  no  railing  or  other  fence  than  the 
wall  between  the  pathway  and  the  avenue;  that  a  railing  or  fence 
had  been  put  there  by  the  defendant  since  the  accident ;  that  tlie  path 
was  not  lighted,  except  as  far  as  it  might  be  lighted  from  the  gas- 
lights in  the  vestibule  of  the  meeting-house,  and  a  street  gas-light, 
on  the  opposite  side  of  Elm  Street,  about  seventy  feet  distant,  which 
has,  since  the  accident,  been  moved  by  the  city  to  the  corner  of  said 
street  and  avenue. 

The  judge  directed  a  verdict  for  the  defendant.  If  the  ruling  was 
correct,  judgment  was  to  be  entered  on  the  verdict;  otherwise,  the 
verdict  was  to  be  set  aside,  and  a  new  trial  ordered. 

Colt,  J.  To  maintain  this  action,  it  must  be  shown  that  the  de- 
fendant corporation  was  chargeable  with  some  neglect  of  duty  which 
it  owed  to  the  plaintiff,  by  reason  of  which  she  suffered  the  injury 
complained  of.  The  injury  was  caused  by  falling  over  a  wall  by  the 
side  of  a  passageway  leading  from  the  street  to  the  front  entrance 
of  the  defendant's  church  edifice.    It  is  allecfed  that  this  was  dansrer- 


162  DAVIS    V.    CONGREGATIONAL   SOCIETY.  [CHAP.    III. 

ous  because  of  the  failure  of  the  defendant  to  provide  by  railing  or 
other  suitable  protection  against  such  an  accident. 

The  owner  or  occupier  of  real  estate  is  under  no  obligation  to  keep 
the  premises  safe  for  those  who  enter  without  inducement  or  invita- 
tion, express  or  implied,  and  the  plaintiff  must  show  that  at  the  time 
of  the  injury  she  was  passing  over  the  way  in  question  by  the  invita- 
tion of  the  defendant,  and  not  by  mere  license  or  permission.  The 
fact  that  the  plaintiff  was  induced  by  the  defendant  to  enter  upon  a 
dangerous  place  without  warning,  is  the  negligence  which  entitles 
the  plaintiff  to  recover.  Sweeny  v.  Old  Colony  &  Newport  Railroad, 
10  Allen,  368.  Carleton  v.  Franconia  Iron  &  Steel  Co.,  99  Mass.  216. 
Larue  v.  Farren  Hotel  Co.,  116  Mass.  67.  Severy  v.  Nickerson,  120 
Mass.  306. 

The  first  question  in  the  case  is  whether  there  was  any  evidence, 
which  should  have  been  submitted  to  the  jury,  that  the  plaintiff  was 
induced  by  the  express  or  implied  invitation  of  the  defendant  to  enter 
upon  the  premises. 

[After  stating  the  facts,  the  Court  proceeded:] 

This  evidence  would  clearly  justify  a  jury  in  finding  that  the  plain- 
tiff came  by  the  defendant's  invitation.  The  authority  given  by  the 
defendant  to  the  conference  to  hold  its  meeting  in  this  place,  implied 
an  authority  to  secure  an  attendance  by  invitations  given  in  the  known 
and  usual  manner,  and  it  is  unnecessary  to  inquire  whether  the  con- 
struction of  this  passageway,  thus  obviously  left  open  to  the  free  use 
of  all  who  might  desire  to  attend  religious  service  in  the  church, 
would  not  in  itself  imply  such  an  invitation  as  would  impose  on  the 
defendant  the  duty  of  making  it  reasonably  safe  to  those  who  in  the 
exercise  of  due  care  might  use  it. 

The  application  of  the  rules  on  which  the  defendant's  liability  de- 
pends is  not  affected  by  the  consideration  that  this  is  a  religious  so- 
ciety, and  that  the  plaintiff  came  solely  for  her  own  benefit  or  grati- 
fication. It  makes  no  difference  that  no  pecuniary  profit  or  other 
benefit  was  received  or  expected  by  the  society.  The  fact  that  the 
plaintiff  comes  by  invitation  is  enough  to  impose  on  the  defendant 
the  duty  which  lies  at  the  foundation  of  this  liability;  and  that  too 
although  the  defendant  in  giving  the  invitation  was  actuated  only  by 
motives  of  friendship  and  Christian  charity.  In  Sweeny  v.  Old  Col- 
ony &  Newport  Eailroad,  above  cited,  the  defendant  was  held  liable, 
because  the  plaintiff  was  induced  to  enter  upon  a  private  crossing 
over  the  railroad,  although  he  had  no  business  with  the  corporation, 
and  simply  atlomptod  to  cross  for  his  own  convenience.  And  this 
defendant,  as  an  incorporated  religious  society  and  as  owner  and  occu- 
pier of  the  premises  in  question,  is  subject  to  all  the  duties  and  liabil- 
ities which  are  incident  to  the  ownership  and  possession  of  real  estate. 

On  the  fUK'stion  wlicthor  the  defendant  was  ehargeal)lo  with  neg- 
lect of  duty  in  noj  providing  a  reasonably  safe  way  to  and  from  the 


CHAP.   III.]  NEGLIGENCE.  163 

church,  we  cannot  say,  as  matter  of  law,  that  the  construction,  loca- 
tion and  direction  of  the  way,  with  the  wall  and  declivity  by  its  side, 
the  want  of  a  proper  railing,  and  the  insiifficiency  of  light,  would  not 
justify  a  finding  that  in  the  night  time  it  was  unsafe  for  the  use  of 
a  person  exercising  ordinary  care  and  prudence.  Nor  can  we  say 
that  the  evidence  shows  conclusively  that  the  plaintiff  was  not  in  the 
exercise  of  due  care.  Mayo  v.  Boston  &  Maine  Railroad,  104  Mass. 
137.  But  the  fact  that  this  court  considers  the  case  as  one  proper 
to  be  submitted  to  the  jury  on  these  points  is  not  to  be  taken  as  an 
indication  of  an  opinion  that  the  finding  should  be  for  the  plaintiff. 
It  is  not  a  question  here  of  the  preponderance  of  evidence;  and  it 
is  often  the  duty  of  the  court  to  submit  a  question  of  fact  to  the  jury, 
on  the  plaintiff's  request,  when  the  weight  of  evidence  may  appear 
to  be  against  him. 

New  trial  ordered} 


BOOMER  V.  WILBUR. 

Supreme  Court  of  Massachusetts,  September,  1900.     176  Mass.  482. 

Tort,  for  personal  injuries  occasioned  to  the  plaintifp  by  the  fall 
of  brick  and  mortar  from  a  chimney  on  the  house  of  the  defendants 
in  Taunton  upon  the  plaintiff  while  she  was  passing  below  on  the 
sidewalk.  At  the  trial  in  the  Superior  Court,  before  Bond,  J.,  the 
jury  returned  a  verdict  for  the  plaintiff;  and  the  defendants  alleged 
exceptions,  which  appear  in  the  opinion. 

Hammond^  J.  The  court  instructed  the  jury  in  substance  that 
where,  under  a  contract  between  the  owner  of  a  house  and  the  person 
doing  the  work,  work  is  done  upon  the  house,  and  the  owner  retains 
the  right  of  access  to  and  the  control  of  the  premises,  and  such  work 
is  ordinarily  attended  with  danger  to  the  public  unless  proper  pre- 
cautions are  taken  to  avoid  it,  the  owner  is  bound  to  the  exercise  of 
due  care  to  see  that  such  precautions  are  taken  for  the  safety  of  the 
public;  and  if  by  reason  of  the  failure  to  take  such  precautions  a 
person  lawfully  on  the  street  and  in  the  exercise  of  due  care  is  injured, 
the  owner  is  answerable  notwithstanding  the  work  is  being  done  under 
a  contract  between  him  and  the  contractor. 

Having  stated  this  as  a  general  rule,  the  court  applied  it  to  this 
case  as  follows :  "  If  the  defendants  employed  a  person  to  repair  the 
chimneys  on  their  buildings  adjoining  the  highway  under  the  contract, 
to  repair  them  for  a  fixed  sum,  and  the  defendants  retained  the  right, 
retained  control,  and  the  right  of  access  to  the  building,  and  such 
work  on  the  chimneys  would  ordinarily  be  attended  with  danger  to 
tlie  public  unless  proper  precautions  to  avoid  it  were  taken,  the  de- 

*  See  Indermaur  r.   Dames,  ante,  p.   152. 


164  BOOMER   V.   WILBUR.  [CHAP.    III. 

fendants  were  bound  to  take  proper  precautions,  or  to  see  that  proper 
precautions  were  taken,  for  the  safety  of  the  public ;  and  if  the  plain- 
tiff was  injured  while  she  was  lawfully  on  the  street,  adjoining  the 
defendants'  premises,  and  in  the  exercise  of  due  care,  by  reason  of  the 
failure  of  the  defendants  to  take  proper  precautions,  or  by  reason  of 
their  failure  to  see  that  proper  precautions  were  taken,  to  avoid  such 
injury,  then  the  defendants  are  liable  for  the  injury." 

We  understand  these  instructions  to  mean  that,  even  if  the  defend- 
ants employed  a  competent,  independent  contractor  to  repair  these 
chimneys,  who  was  to  do  the  work  without  any  dictation  or  supervision 
on  the  part  of  the  defendants  over  the  details  of  the  work  or  the  man- 
ner in  which  it  should  be  done,  the  defendants  would  be  answerable 
for  the  failure  of  the  contractor  to  take  proper  precautions  to  protect 
travellers  upon  the  highway  from  falling  bricks. 

While  the  master  is  liable  for  the  negligence  of  the  servant,  yet 
when  the  person  employed  is  engaged  under  an  entire  contract  for  a 
gross  sum  in  an  independent  operation,  and  is  not  subject  to  the 
direction  and  control  of  his  employer,  the  relation  is  not  regarded  as 
that  of  master  and  servant,  but  as  that  of  contractor  and  contractee; 
and  in  such  case  the  general  rule  is  that  the  negligence  of  the  contract- 
ing party  cannot  be  charged  upon  him  for  whom  the  work  is  to  be 
done ;  and  this  rule  is  applicable  even  where  the  owner  of  the  land  is 
the  person  who  hires  the  contractor,  and  for  whose  benefit  the  work  is 
done.  Hilliard  v.  Eichardson,  3  Gray,  349.  Forsyth  v.  Hooper,  11 
Allen,  419.  Conners  v.  Hennessey,  112  Mass.  96.  Harding  v.  Boston, 
163  Mass.  14,  18.  There  are,  however,  some  well  known  exceptions 
to  the  rule.  If  the  performance  of  the  work  will  necessarily  bring 
wrongful  consequences  to  pass  unless  guarded  against,  and  if  the  con- 
tract cannot  be  performed  except  under  the  right  of  the  employer  who 
retains  the  right  of  access,  the  law  may  hold  the  employer  answerable 
for  negligence  in  the  performance  of  the  work. 

Woodman  v.  Metropolitan  Eailroad,  149  Mass.  335,  was  such  a 
case,  and  the  defendant  was  held  liable  for  the  act  of  an  independent 
contractor  hired  by  it  to  dig  up  and  obstruct  the  streets  for  the  pur- 
pose of  laying  down  the  track,  upon  the  ground  that  the  contract 
called  for  an  obstruction  to  the  highway  which  necessarily  would  be 
a  nuisance  unless  properly  guarded  against. 

The  same  principle  is  further  illustrated  in  Curtis  v.  Iviley,  153 
Mass.  123,  and  Thompson  v.  Lowell,  Lawrence  &  Haverhill  Street 
Railway,  170  Mass.  577. 

Again,  if  the  contract  calls  for  the  construction  of  a  nuisance  upon 
the  land  of  the  employer,  he  may  be  held  answerable  for  the  conse- 
quences. In  Gorham  v.  (xross,  125  Mass.  232,  the  defendant  had 
caused  to  he  constructed  hy  an  indopondcnt  contractor  a  party  wall, 
half  on  the  defendant's  land  iind  Imlf  upon  adjoining  land,  and  after 
it  was  coiiiplc'tf'd  and  accepicd  il   ('ell,  causing  damage  to  the  property 


CHAP.    III.]  NEGLIGENCE.  165 

of  the  adjoining  landowner.  There  was  evidence  that  the  fall  of  the 
wall  was  occasioned  by  negligence  in  its  construction.  The  court  said 
that  the  wall  as  constructed  was  a  nuisance  "  likely  to  do  mischief," 
and  held  the  defendant  answerable  for  the  damage  caused  by  its  fall. 

To  the  same  effect  is  Cork  v.  Blossom,  163  Mass.  330. 

The  instructions  to  the  jury  allowed  them  to  fmd  a  verdict  for  the 
plaintiff,  not  upon  the  ground  that  the  chimney  was  a  nuisance 
"  likely  to  do  mischief,"  but  upon  the  ground  that  the  work  of  repair 
called  for  by  the  contract  was  necessarily  a  nuisance  within  the  rule 
stated  in  Woodman  v.  Metropolitan  Eailroad,  ubi  supra,  and  other 
similar  cases. 

The  work  called  for  was  the  repair  of  chimneys.  At  most  the  bricks 
were  to  be  taken  off  for  a  few  feet  and  relaid.  The  work  which  was 
to  be  done  was  not  such  as  would  necessarily  endanger  persons  in  the 
street.  It  did  not  involve  throwing  the  brick  into  the  street,  or  caus- 
ing or  allowing  them  to  fall  so  as  to  endanger  persons  travelling 
therein.  It  is  plain  that  unless  there  was  negligence  in  the  actual 
handling  of  the  brick,  there  could  be  no  injury  to  the  passing  traveller. 
The  case  very  much  resembles  Pye  v.  Faxon,  156  Mass.  471.  The 
plaintiff  in  that  case,  being  the  tenant  of  a  house,  sued  the  owner  of 
an  adjoining  lot  for  trespasses  alleged  to  have  been  committed  upon 
the  plaintiff's  estate  by  the  defendant  while  engaged  in  constructing 
a  large  building  on  his  lot.  It  appeared  from  the  testimony  that  the 
wall  next  to  the  plaintiff's  house  was  not  built  on  the  boundary  line, 
but  was  several  inches  from  it,  and  that  the  staging  used  in  building 
it  was  placed  upon  the  inside;  that  the  brick  when  laid  pressed  out 
the  mortar,  which  was  then  scraped  off  by  the  trowels  of  the  masons, 
and  some  of  it  dropped  upon  the  plaintiff's  land,  upon  her  rear  win- 
dows, and  upon  the  clothes  hanging  in  her  back  yard.  At  the  trial 
the  presiding  judge  instructed  the  jury  that  if  the  dropping  of  the 
mortar  was  from  the  carelessness  of  the  workman  the  defendant  was 
not  liable,  but  if  it  was  something  necessarily  involved  in  the  building 
of  the  wall,  then  he  might  be  liable ;  and  these  instructions  were  held 
to  be  correct. 

This  is  not  a  case  where  the  work,  even  if  properly  done,  creates 
a  peril,  unless  guarded  against,  as  in  the  cases  relied  upon  by  the 
plaintiff.  The  accident  was  caused  by  the  act  of  the  contractor  in 
doing  what  it  was  not  necessary  for  him  to  do,  what  he  was  not  ex- 
pected to  do,  and  what  he  did  not  intend  to  do.  If  it  had  been  neces- 
sary for  him  to  topple  the  chimney  over  into  the  street,  or  to  remove 
the  bricks  by  letting  them  fall  into  it,  or  the  contract  had  contem- 
plated such  action,  the  instructions  would  not  have  been  objection- 
able ;  but  as  this  was  not  necessary  or  intended,  the  work  could  not  be 
classed  as  work  which,  if  properly  done,  was  ordinarily  attended  with 
danger  to  the  public. 

The  negligence,  if  any,  was  in  a  mere  detail  of  the  work.    The  con- 


166  CROWN    V.    ORR.  [chap.    III. 

tract  did  not  contemplate  such  negligence,  and  the  negligent  party  is 
the  only  one  to  be  held.  The  case  is  clearly  distinguishable  from 
Woodman  v.  Metropolitan  Eailroad,  ubi  supra,  and  others  of  a  like 
character,  and  must  be  classed  with  Conners  v.  Hennessey,  ubi  supra, 
and  others  like  it. 

The  exclusion  of  the  questions  with  reference  to  the  prior  ailments 
of  the  plaintiff  was  within  the  discretion  of  the  court.  The  physician 
who  had  treated  her  for  them  testified  that  he  did  not  think  there 
was  any  reason  to  believe  that  they  were  in  any  way  connected  with 
her  condition  after  the  accident;  and  although,  as  stated  by  the  coun- 
sel for  the  defendant,  that  might  not  be  the  opinion  of  another  physi- 
cian who  was  present  at  the  suggestion  of  the  defendant,  to  hear  the 
evidence,  and,  although  in  accordance  with  experience  in  such  matters 
very  likely  it  would  not  be,  still  the  court  may  have  concluded  that 
he  could  not  assume  this  contradiction  in  the  expert  testimony  until 
it  actually  occurred,  and  that  upon  the  evidence  before  him  he  was 
justified  in  looking  at  the  prior  ailments  as  in  no  way  connected  with 
her  condition  at  the  trial,  and  therefore  immaterial.  It  does  not 
appear  that  in  this  there  was  error. 

Exceptions  sustained.^ 


CROWN  V.  ORR. 

Court  of  Appeals  of  New  York,  December,  1893.     140  N.  Y.  450. 

The  plaintiff,  an  infant  suing  by  guardian,  sought  to  recover  dam- 
ages for  bodily  injuries  sustained  by  him  by  reason  of  the  defendants' 
alleged  negligence.  The  plaintiff  was  at  the  time  engaged  in  the 
service  of  the  defendants,  and  was  nineteen  years  old.  Further  facts 
appear  in  the  opinion  of  the  court.  This  was  an  appeal  from  a  judg- 
ment of  the  General  Term,  affirming  a  verdict  and  judgment  for  the 
plaintiff,  after  refusal  of  a  motion  for  a  new  trial. 

O'Brien,  J.  The  relation  of  master  and  servant  existed  between 
the  plaintiff  and  the  defendants  at  the  time  that  the  former  received 
the  personal  injury  for  which  he  has  recovered  damages.  The  ques- 
tion presented  is  whether,  upon  any  view  of  the  evidence,  the  result 
can  be  attributed  to  any  fault  or  neglect  on  the  part  of  the  master. 
The  rules  of  law  in  such  cases  are  well  settled,  but  it  is  not  always 
easy  to  apply  them  to  the  varying  facts  in  each  particular  case.  The 
master  does  not  insure  the  servant  against  all  accidents  and  mishaps 
that  may  befall  him  in  the  business.  The  servant,  when  he  enters  into 
the  relation,  assumes  not  only  nil  the  risks  incident  to  such  employ- 
ment, bnt  all  dangers  which  are  obvious  and  apparent.     The  law  im- 

»  Kf'O  I'.i;;<'lr.vv   on  'I'orts.   Hth  cd.   eh.    Ill,   §  11. 


CHAP.   III.]  NEGLIGENCE.  167 

poses  upon  him  the  duty  of  self-protection,  and  always  assumes  that 
this  instinct,  so  deeply  rooted  in  human  nature,  will  guard  him  against 
all  risks  and  dangers  incident  to  the  employment  or  arising  in  the 
course  of  the  business  of  which  he  has  knowledge  or  the  means  of 
knowledge.  If  he  voluntarily  enters  into  or  continues  in  the  service 
without  objection  or  complaint,  having  knowledge  or  the  means  of 
knowing  the  dangers  involved,  he  is  deemed  to  assume  the  risk  and 
to  waive  any  claim  for  damages  against  the  master  in  case  of  personal 
injury  to  him.  Tliompson  on  Neg.,  p.  1008;  Haskin  v.  N.  Y.  C.  & 
H.  E.  E.  E.  Co.,  65  Barb.  129 ;  affid.,  56  N.  Y.  608 ;  Jones  v.  Eoach, 
9  J.  &  S.  240. 

This  principle  applies  to  the  plaintiff,  though  he  was  not  at  the 
time  of  full  age.  Like  any  other  servant  he  took  upon  himself  the 
ordinary  risks  of  the  service,  and  all  dangers  from  the  use  of  machin- 
ery which  were  known  to  him,  or  obvious  to  persons  of  ordinary  intelli- 
gence. De  Graffe  v.  N.  Y.  C.  &  H.  E.  E.  E.  Co.,  76  N.  Y.  125;  King 
V.  B.  &  W.  E.  E.  Co.,  9  Cush.  112.  He  is  bound  to  take  notice  of  the 
ordinary  operation  of  familiar  laws,  and  to  govern  himself  accord- 
ingly, and  if  he  fails  to  do  so,  the  risk  is  his  own.  He  is  bound  to 
use  his  eyes  to  see  that  which  is  open  and  apparent  to  any  person  so 
using  them,  and  if  he  neglects  to  do  so  he  cannot  charge  the  conse- 
quences upon  the  master. 

The  liability  of  the  master  for  injuries  to  the  servant  received  in 
the  service  is  based  upon  his  personal  negligence,  and  the  evidence  must 
establish  some  personal  fault  or  neglect  of  duty  on  his  part,  or  what 
is  equivalent  thereto,  in  order  to  justify  a  verdict,  and  he  is  entitled 
to  the  presumption  that  he  has  performed  this  duty  until  the  contrary 
is  made  to  appear.  Wood  on  Master  &  Servant,  §§  345,  346 ;  Cahill 
V.  Hilton,  106  N.  Y.  517.  If  the  injury  to  the  servant  is  attributable 
to  the  master's  neglect  in  omitting  to  furnish  safe  and  adequate  appli- 
ances for  the  work,  according  to  the  nature  of  the  business,  or  com- 
petent co-servants,  or  even  if  he  neglects  to  give  persons  unacquainted 
with  the  use  of  machinery  proper  instructions  with  respect  to  its  use, 
he  is  liable.  It  remains  only  to  apply  these  principles  to  the  facts  of 
this  case  as  disclosed  by  the  testimony  of  the  plaintiff  himself.  On 
the  10th  of  December,  1890,  the  plaintiff,  who  was  then  about  nine- 
teen years  of  age,  and  in  the  employment  of  the  defendants,  lost  his 
hand  and  part  of  the  arm  by  coming  in  contact  with  the  knives  of  a 
planing  machine.  No  complaint  was  made  that  the  machine  was  in 
any  respect  defective  or  unsuitable  for  the  purpose  for  which  it  was 
used,  or  that  the  place  where  the  plaintiff  was  directed  to  work  was 
in  any  respect  unsafe.  The  only  omission  of  duty  charged  against  the 
master  in  the  complaint,  or  at  least  the  only  fault  now  urged,  is  that 
the  plaintiff  was  ignorant  of  the  use  of  machinery,  and  the  defendants 
neglected  to  give  proper  instructions  to  him  in  this  regard,  or  cause 
them  to  be  given. 


168  CROWN    V.    ORR.  [chap.    III. 

When  the  accident  occurred,  the  plaintiff  had  been  at  work  in  the 
shop  about  three  weeks.  His  duty  was  to  stand  in  front  of  the 
machine,  and  about  four  or  five  feet  from  the  end  of  it,  and  take  off 
the  dressed  lumber  after  it  had  passed  through  the  planer,  and  when 
moved  to  where  he  stood  by  the  action  of  the  machine  and  the  use  of 
a  small  roller  and  horse  attached.  He  was  not  required  to  operate 
or  handle  the  machine  itself,  but  was  cautioned  against  meddling 
with  its  operation.  There  were  four  of  these  machines  in  the  room, 
under  charge  of  a  man  who  assigned  the  plaintiff  to  one  of  them  to 
take  the  boards  away  and  load  them  upon  a  truck  as  they  were  dressed. 
The  plaintiff  testifies  that  on  the  day  of  the  accident  the  man  in 
charge  ordered  him  to  place  a  hood  made  of  tin,  and  used  to  divert 
the  shavings  and  dust  from  the  machine  to  the  floor  under  the  frame, 
in  its  place  in  front  of  the  knives  of  the  planer.  This  hood  had  a 
hook  at  the  top,  and  when  in  use  hung  in  front  of  the  knives  and 
about  eight  inches  from  them,  upon  a  small  beam  under  the  frame. 
He  says  that  while  attempting  to  put  it  in  place  his  hand  was  caught 
by  the  knives,  and  in  this  way  the  injury  was  sustained.  At  this 
point  there  is  a  marked  conflict  in  the  evidence.  The  plaintiff  says 
that  he  was  directed  by  the  man  in  charge  to  put  the  hood  in  place 
without  giving  him  any  instructions  as  to  the  manner  of  doing  it,  or 
the  danger  incident  to  such  an  operation.  The  foreman  of  the 
machines  in  charge  admits  that  he  gave  him  no  instructions  in  this 
respect,  for  the  simple  reason  that  no  such  duty  was  ever  required  of 
him,  and,  in  fact,  he  gave  him  no  order  to  that  effect  on  this  occasion, 
but  the  act  was  entirely  voluntary  on  the  part  of  the  plaintiff,  and 
without  request  or  direction  from  any  one.  The  plaintiff  says  that 
when  his  hand  came  in  contact  with  the  knives,  the  hood  dropped 
from  the  hand  upon  the  floor,  and  that  he  never  succeeded  in  hang- 
ing it.  On  the  other  hand,  the  foreman,  and  in  this  he  is  corroborated 
by  several  other  witnesses  who  were  working  in  the  shop  at  the  time, 
says  that  after  the  injury  the  hood  was  found  hanging  in  front  of  the 
knives,  not  upon  the  beam  where  it  was  always  placed,  but  upon  an- 
other, some  four  inches  nearer  to  the  knives.  Assuming  that  the 
verdict  has  determined  conclusively  that  the  foreman  ordered  the 
plaintiff  to  hang  this  hood  in  place,  in  front  of  the  knives  of  the 
planer,  does  this  charge  the  master  with  personal  negligence?  The 
plaintiff  had  been  at  work  in  front  of  his  machine  for  three  weeks, 
and  during  that  time  had  full  op]-)ortunity  to  observe  the  manner  of 
handling  this  hood  and  ])lacing  it  upon  the  machine.  He  had  the 
same  opportunity  of  informing  himself  with  respect  to  any  danger 
attending  such  an  act  as  the  master  had.  There  was  nothing  in  the 
operation  wbicii  he  was  required  to  perform  that  called  for  any  special 
instructions,  and  he  asked  for  none.  It  was  not  negligence  to  direct 
a  young  man  nineteen  years  of  age,  who  had  seen  the  machine  in 
operation   for  three  weeks,  to  perform  such  duty,  even  without   in- 


CHAP.   III.]  NEGLIGENCE.  169 

structions,  especially  when  he  asked  for  none  and  gave  no  sign  that 
he  was  not  entirely  familiar  with  the  method  by  which  the  order 
could  be  properly  obeyed.  This  was  one  of  the  risks  which  he  as- 
sumed when  he  entered  the  defendants'  service.  But  if,  as  the  learned 
counsel  for  the  plaintiff  claims,  the  operation  was  specially  dangerous 
in  the  absence  of  instructions,  then  the  danger  was  obvious,  and  he 
was  not  bound  to  obey  the  order;  but  if  he  did,  the  risk  was  his  own. 
The  learned  trial  judge  instructed  the  jury  with  respect  to  the  law 
upon  this  point  in  the  following  language :  "  Now,  there  are  some 
dangers,  gentlemen,  of  which  a  person  does  not  need  to  be  informed. 
Where  there  is  a  knife  or  a  saw,  the  danger  is  palpable  to  any  one 
who  is  employed  to  work,  that  if  he  gets  before  that  knife  or  saw,  ho 
will  be  cut  or  hurt.  .  .  .  Against  apparent  dangers  a  master  need  not 
warn  a  servant.  .  .  .  Now,  here  this  boy  unquestionably  knew  that 
there  were  knives  in  this  machine  that  planed  this  board  and  cut 
grooves  or  tongues  on  either  side;  that  was  as  plain  to  his  under- 
standing as  it  is  to  yours,  and  it  was  as  clear  to  him  when  he  was  put 
at  this  employment  as  it  is  to  us  to-day,  after  this  trial.  He  knew 
that  if  his  fingers  got  within  the  range  of  those  knives  that  the  same 
power  that  caused  those  knives  to  revolve  and  cut  off  with  great 
rapidity  the  coating  of  these  boards  and  make  them  smooth,  would 
injure  his  fingers.  Instruction  was  not  necessary  to  impart  that 
information." 

This  is  a  clear  exposition  of  the  law  applicable  to  such  questions, 
but  we  think  its  application  to  the  proofs  in  this  case  called  for  a 
non-suit  or  the  direction  of  a  verdict  for  the  defendants.  There  is 
no  conflict  in  the  evidence  as  to  the  particular  duties  which  the  plain- 
tiff was  hired  to  perform.  They  consisted,  as  already  stated,  in  remov- 
ing the  dressed  boards  from  the  machine  as  they  came  through,  and 
occasionally  sweeping  the  floor.  It  is  admitted  that  proper  instruc- 
tions were  given  him  to  perform  this  work  with  safety,  and  if  it  be 
true,  as  the  plaintiff  testifies,  that  on  the  occasion  in  question  he  was 
directed  to  perform  another,  and  specially  dangerous  service,  without 
sufficient  instruction,  the  fault  was  not  that  of  the  master,  but  of  a 
co-servant.  So  that  whether  we  consider  the  order  to  hang  the  hood 
as  an  incident  of  the  employment  the  risks  of  which  the  plaintiff 
assumed,  or  a  direction  to  do  a  reckless  or  dangerous  thing  without 
sufficient  knowledge  or  instruction,  the  dangers  of  which  were  plain 
and  obvious,  or  a  request  by  the  foreman  to  do  something  that  by  the 
employment  he  was  not  bound  to  do,  the  result  is  the  same.  The 
plaintiff  was,  no  doubt,  very  seriously  injured,  and  his  case  was  one 
which  appealed  to  the  sympathy  of  the  jury,  although  the  testimony 
preponderated  strongly  in  favor  of  the  conclusion  that  the  injury  was 
the  result  of  some  carelessness  or  inattention  on  his  part.  But  it 
would  be  manifestly  unjust  to  subject  the  master  to  damages  in  such 
a  case  where^  under  the  most  favorable  view  that  can  be  taken  of  the 


170  FARWELL   V.    BOSTON    AND   WORCESTER   RAILROAD      [CHAP.    III. 

evidence  in  favor  of  the  plaintiff,  the  injury  was  the  result  of  an 
accident  which  could  not  have  been  anticipated  or  prevented  by  the 
exercise  of  ordinary  care,  and  which  occurred  without  the  fault  of 
the   master. 

The   judgment   should,   therefore,   be   reversed,   and   a   new   trial 
granted,  costs  to  abide  the  event. 

All  concur. 

Judgment  reversed. 


FARWELL  V.  THE  BOSTON  AND  WORCESTER  RAILROAD 

CORPORATION. 

Supreme  Court  of  Massachusetts,  March,  1849.     4  Met.  49. 

In  an  action  of  trespass  upon  the  case,  the  plaintiff  alleged  in  his 
declaration  that  he  agreed  with  the  defendants  to  serve  them  in  the 
employment  of  an  engineer  in  the  management  and  care  of  their 
engines  and  cars  running  on  their  railroad  between  Boston  and 
Worcester,  and  entered  on  said  employment,  and  continued  to  perform 
his  duties  as  engineer  till  October  30,  1837,  when  the  defendants,  at 
Newton,  by  their  servants,  so  carelessly,  negligently,  and  unskilfully 
managed  and  used,  and  put  and  placed  the  iron  match  rail,  called  the 
short  switch,  across  the  rail  or  track  of  their  said  railroad,  that  the 
engine  and  cars,  upon  which  the  plaintiff  was  engaged  and  employed 
in  the  discharge  of  his  said  duties  of  engineer,  were  thrown  from  the 
track  of  said  railroad,  and  the  plaintiff,  by  means  thereof,  was  thrown 
with  great  violence  upon  the  ground;  by  means  of  which  one  of  the 
wheels  of  one  of  said  cars  passed  over  the  right  hand  of  the  plaintiff, 
crushing  and  destroying  the  same. 

The  case  was  submitted  to  the  court  on  the  following  facts  agreed 
by  the  parties :  "  The  plaintiff  was  employed  by  the  defendants,  in 
1835,  as  an  engineer,  and  went  at  first  with  the  merchandise  cars,  and 
afterwards  with  the  passenger  cars,  and  so  continued  till  October  30, 
1837,  at  the  wages  of  two  dollars  per  day,  that  being  the  usual  wages 
paid  to  engine-men,  which  are  higher  than  the  wages  paid  to  a  machin- 
ist, in  which  capacity  the  plaintiff  formerly  was  employed. 

"  On  the  30th  of  October,  1837,  the  plaintiff,  then  being  in  the  em- 
ployment of  the  defendants,  as  such  engine-man,  and  running  the 
passenger  train,  ran  his  engine  off  at  a  switch  on  the  road,  which  had 
been  left  in  a  wrong  condition  (as  alleged  by  the  plaintiff,  and,  for 
the  purposes  of  tliis  trial,  admitted  by  the  defendants)  by  one  Whit- 
comb,  another  servant  of  the  defendants,  who  had  been  long  in  their 
employment,  as  a  switcliman  or  tender,  and  had  the  care  of  switches 
on  the  road,  and  was  a  careful  and  trustworthy  servant,  in  his  general 


CHAP.    III.]  NEGLIGENCE.  171 

character,  and  as  such  servant  was  well  known  to  the  plaintiff;  by 
which  running  off  the  plaintiff  sustained  the  injury  complained  of  in 
his  declaration. 

"  The  said  Farwell  (the  plaintiff)  and  Whitcomb  were  both  ap- 
pointed by  the  superintendent  of  the  road,  who  was  in  the  habit  of 
passing  over  the  same  very  frequently  in  the  cars,  and  often  rode  on 
the  engine. 

"  If  the  court  shall  be  of  opinion  that,  as  matter  of  law,  the  defend- 
ants are  not  liable  to  the  plaintiff,  he  being  a  servant  of  the  corpora- 
tion, and  in  their  employment,  for  the  injury  he  may  have  received 
from  the  negligence  of  said  Whitcomb,  another  servant  of  the  corpora- 
tion, and  in  their  employment,  then  the  plaintiff  shall  become  non- 
suit; but  if  the  court  shall  be  of  opinion,  as  matter  of  law,  that  the 
defendants  may  be  liable  in  this  case,  then  the  case  shall  be  submitted 
to  a  jury  upon  the  facts  which  may  be  proved  in  the  case ;  the  defend- 
ants alleging  negligence  on  the  part  of  the  plaintiff.'' 

Shaw,  C.  J.  This  is  an  action  of  new  impression  in  our  courts, 
and  involves  a  principle  of  great  importance.  It  presents  a  case  where 
two  persons  are  in  the  service  and  employment  of  one  company,  whose 
business  it  is  to  construct  and  maintain  a  railroad,  and  to  employ  their 
trains  of  cars  to  carry  persons  and  merchandise  for  hire.  They  are 
appointed  and  employed  by  the  same  company  to  perform  separate 
duties  and  services,  all  tending  to  the  accomplishment  of  one  and  the 
same  purpose,  —  that  of  the  safe  and  rapid  transmission  of  the  trains ; 
and  they  are  paid  for  their  respective  services  according  to  the  nature 
of  their  respective  duties,  and  the  labor  and  skill  required  for  their 
proper  performance.  The  question  is  whether,  for  damages  sustained 
by  one  of  the  persons  so  employed,  by  means  of  the  carelessness  and 
negligence  of  another,  the  party  injured  has  a  remedy  against  the  com- 
mon employer.  It  is  an  argument  against  such  an  action,  though  cer- 
tainly not  a  decisive  one,  that  no  such  action  has  before  been  main- 
tained. 

It  is  is  laid  down  by  Blackstone,  that  if  a  servant,  by  his  negli- 
gence, does  any  damage  to  a  stranger,  the  master  shall  be  answerable 
for  his  neglect.  But  the  damage  must  be  done  while  he  is  actually 
employed  in  the  master's  service;  otherwise  the  servant  shall  answer 
for  his  own  misbehavior.  1  Bl.  Com.  431 ;  M'Manus  v.  Crickett, 
1  East,  106.  This  rule  is  obviously  founded  on  the  great  prin- 
ciple of  social  duty,  that  every  man,  in  the  management  of  his  own 
affairs,  whether  by  himself  or  by  his  agents  or  servants,  shall  so  con- 
duct them  as  not  to  injure  another;  and  if  he  does  not,  and  another 
thereby  sustains  damage,  he  shall  answer  for  it.  If  done  by  a  servant, 
in  the  course  of  his  employment,  and  acting  within  the  scope  of  his 
authority,  it  is  considered,  in  contemplation  of  law,  so  far  the  act  of 
the  master  that  the  latter  shall  be  answerable  civiliter.  But  this  pre- 
supposes that  the  parties  stand  to  each  other  in  the  relation  of  stran- 


172  FARWELL   V.    BOSTON    AND   WORCESTER   RAILROAD      [CHAP,    III. 

gers,  between  whom  there  is  no  privity;  and  the  action,  in  such  case, 
is  an  action  sounding  in  tort.  The  form  is  trespass  on  the  case,  for 
the  consequential  damage.  The  maxim  respondeat  superior  is  adopted 
in  that  case  from  general  considerations  of  policy  and  security. 

But  this  does  not  apply  to  the  case  of  a  servant  bringing  his  action 
against  his  own  employer  to  recover  damages  for  an  injury  arising 
in  the  course  of  that  employment,  where  all  such  risks  and  perils  as 
the  employer  and  the  servant  respectively  intend  to  assume  and  bear 
may  be  regulated  by  the  express  or  implied  contract  between  them,  and 
which,  in  contemplation  of  law,  must  be  presumed  to  be  thus  regu- 
lated. 

The  same  view  seems  to  have  been  taken  by  the  learned  counsel  for 
the  plaintifE  in  the  argument ;  and  it  was  conceded  that  the  claim  could 
not  be  placed  on  the  principle  indicated  by  the  maxim  respondeat  su- 
perior, which  binds  the  master  to  indemnify  a  stranger  for  the  damage 
caused  by  the  careless,  negligent,  or  unskilful  act  of  his  servant  in  the 
conduct  of  his  affairs.  The  claim,  therefore,  is  placed,  and  must  be 
maintained,  if  maintained  at  all,  on  the  ground  of  contract.  As  there 
is  no  express  contract  between  the  parties,  applicable  to  this  point,  it 
is  placed  on  the  footing  of  an  implied  contract  of  indemnity,  arising 
out  of  the  relation  of  master  and  servant.  It  would  be  aij  implied 
promise,  arising  from  the  duty  of  the  master  to  be  responsible  to  each 
person  employed  by  him,  in  the  conduct  of  every  branch  of  business, 
where  two  or  more  persons  are  employed,  to  pay  for  all  damage  occa- 
sioned by  the  negligence  of  every  other  person  employed  in  the  same 
service.  If  such  a  duty  were  established  by  law,  —  like  that  of  a  com- 
mon carrier,  to  stand  to  all  losses  of  goods  not  caused  by  the  act  of 
God  or  of  a  public  enemy,  or  that  of  an  innkeeper,  to  be  responsible, 
in  like  manner,  for  the  baggage  of  his  guests,  —  it  would  be  a  rule  of 
frequent  and  familiar  occurrence;  and  its  existence  and  application, 
with  all  its  qualifications  and  restrictions,  would  be  settled  by  judi- 
cial precedents.  But  we  are  of  opinion  that  no  such  rule  has  been 
established,  and  the  authorities,  as  far  as  they  go,  are  opposed  to  the 
principle.  Priestley  v.  Fowler,  3  Mees.  &  Welsh.  1 ;  Murray  v.  South 
Carolina  Railroad  Company,  1  McMullan,  385. 

The  general  rule  resulting  from  considerations  as  well  of  justice 
as  of  policy  is  that  he  who  engages  in  the  employment  of  another  for 
the  performance  of  specified  duties  and  services,  for  compensation, 
takes  upon  himself  the  natural  and  ordinary  risks  and  perils  incident 
to  the  performance  of  such  services,  and,  in  legal  presumption,  the 
compensation  is  adjusted  accordingly.  And  we  are  not  aware  of  any 
principle  which  should  except  the  perils  arising  from  the  carelessness 
and  negligence  of  those  who  are  in  the  same  employment.  These  are 
perils  whicli  the  servant  is  as  likely  to  know,  and  against  which  he  can 
as  effectually  guard,  as  the  master.  They  arc  perils  incident  to  the 
service,  and  which  can  be  as  distinctly  foreseen  and  provided  for  in  the 


CHAP.    III.]  NEGLIGENCE.  173 

rate  of  compensation  as  any  others.  To  say  that  the  master  shall  be 
responsible  because  the  damage  is  caused  by  his  agents,  is  assuming  the 
vtry  point  which  remains  to  be  proved.  They  are  his  agents  to  some 
extent,  and  for  some  purposes ;  but  whether  he  is  responsible,  in  a  par- 
ticular case,  for  their  negligence,  is  not  decided  by  the  single  fact  tliat 
they  are,  for  some  purposes,  his  agents.  It  seems  to  be  now  well  set- 
tled, whatever  might  have  been  thought  formerly,  that  underwriters 
cannot  excuse  themselves  from  payment  of  a  loss  by  one  of  the  perils 
insured  against,  on  the  ground  tliat  the  loss  was  caused  by  the  negli- 
gence or  unskilfulness  of  the  officers  or  crew  of  the  vessel,  in  the  per- 
formance of  their  various  duties  as  navigators,  although  employed  and 
paid  by  the  owners,  and,  in  the  navigation  of  the  vessel,  their  agents. 
Copeland  v.  New  England  Marine  Ins.  Co.,  2  Met.  440-443,  and  cases 
there  cited.  I  am  aware  tliat  the  maritime  law  has  its  own  rules  and 
analogies,  and  that  we  cannot  always  safely  rely  upon  them  in  apply- 
ing them  to  other  branches  of  law.  But  the  rule  in  question  seems  to 
be  a  good  authority  for  the  point  that  persons  are  not  to  be  responsible, 
in  all  cases,  for  the  negligence  of  those  employed  by  them. 

If  we  look  from  considerations  of  justice  to  those  of  policy,  they  will 
strongly  lead  to  the  same  conclusion.  In  considering  the  rights  and 
obligations  arising  out  of  particular  relations,  it  is  competent  for 
courts  of  justice  to  regard  considerations  of  policy  and  general  con- 
venience, and  to  draw  from  them  such  rules  as  will,  in  their  practical 
application,  best  promote  the  safety  and  security  of  all  parties  con- 
cerned. This  is,  in  truth,  the  basis  on  which  implied  promises  are 
raised,  being  duties  legally  inferred  from  a  consideration  of  what  is 
best  adapted  to  promote  the  benefit  of  all  persons  concerned,  under 
given  circumstances.  To  take  the  well-known  and  familiar  cases  al- 
ready cited:  a  common  carrier,  without  regard  to  actual  fault  or 
neglect  in  himself  or  his  servants,  is  made  liable  for  all  losses  of  goods 
confided  to  him  for  carriage,  except  those  caused  by  the  act  of  God  or 
of  a  public  enemy,  because  he  can  best  guard  them  against  all  minor 
dangers,  and  because,  in  case  of  actual  loss,  it  would  be  extremely  dif- 
ficult for  the  owner  to  adduce  proof  of  embezzlement,  or  other  actual 
fault  or  neglect  on  the  part  of  the  carrier,  although  it  may  have  been 
the  real  cause  of  the  loss.  The  risk  is  therefore  thrown  upon  the  car- 
rier; and  he  receives,  in  the  form  of  payment  for  the  carriage,  a 
premium  for  the  risk  which  he  thus  assumes.  So  of  an  innkeeper ;  he 
can  best  secure  the  attendance  of  honest  and  faithful  servants,  and 
guard  his  house  against  thieves.  Whereas,  if  he  were  responsible 
only  upon  proof  of  actual  negligence,  he  might  connive  at  the  pres- 
ence of  dishonest  inmates  and  retainers,  and  even  participate  in  the 
embezzlement  of  the  property  of  the  guests,  during  the  hours  of  their 
necessary  sleep,  and  yet  it  would  be  difficult,  and  often  impossible, 
to  prove  these  facts. 

The  liability  of  passenger  carriers  is  founded  on  similar  considera- 


174  FARWELL    V.    BOSTON    AND   WOECESTEE   RAILROAD.     [CHAP.    III. 

tions.  They  are  held  to  the  strictest  responsibility  for  care,  vigilance, 
and  skill,  on  the  part  of  themselves  and  all  persons  employed  by  them, 
and  they  are  paid  accordingly.  The  rule  is  founded  on  the  expediency 
of  throwing  the  risk  upon  those  who  can  best  guard  against  it.  Story 
on  Bailments,  §590  et  seq. 

We  are  of  opinion  that  these  considerations  apply  strongly  to 
the  case  in  question.  Where  several  persons  are  employed  in  the 
conduct  of  one  common  enterprise  or  undertaking,  and  the  safety 
of  each  depends  much  on  the  care  and  skill  with  which  each  other 
shall  perform  his  appropriate  duty,  each  is  an  observer  of  the  conduct 
of  the  others,  can  give  notice  of  any  misconduct,  incapacity,  or  neglect 
of  duty,  and  leave  the  service,  if  the  common  employer  will  not  take 
such  precautions,  and  employ  such  agents,  as  the  safety  of  the  whole 
party  may  require.  By  these  means,  the  safety  of  each  will  be  much 
more  effectually  secured  than  could  be  done  by  a  resort  to  the  common 
employer  for  indemnity  in  case  .of  loss  by  the  negligence  of  each 
other.  Eegarding  it  in  this  light,  it  is  the  ordinary  case  of  one  sus- 
taining an  injury  in  the  course  of  his  own  employment,  in  which  he 
must  bear  the  loss  himself,  or  seek  his  remedy,  if  he  have  any,  against 
the  actual  wrong-doer. 

In  applying  these  principles  to  the  present  case,  it  appears  that 
the  plaintiff  was  employed  by  the  defendants  as  an  engineer,  at  the 
rate  of  wages  usually  paid  in  that  employment,  being  a  higher  rate 
than  the  plaintiff  had  before  received  as  a  machinist.  It  was  a  volun- 
tary undertaking  on  his  part,  with  a  full  knowledge  of  the  risks 
incident  to  the  employment ;  and  the  loss  was  sustained  by  means  of 
an  ordinary  casualty,  caused  by  tlie  negligence  of  another  servant  of 
the  company.  Under  these  circumstances,  the  loss  must  be  deemed 
to  be  the  result  of  a  pure  accident,  like  those  to  which  all  men,  in  all 
employments,  and  at  all  times,  are  more  or  less  exposed;  and,  like 
similar  losses  from  accidental  causes,  it  must  rest  where  it  first  fell, 
unless  the  plaintiff  has  a  remedy  against  the  person  actually  in 
default,  of  which  we  give  no  opinion. 

It  was  strongly  pressed  in  the  argument  that  although  this  might 
be  so,  where  two  or  more  servants  are  employed  in  the  same  depart- 
ment of  dut}^  where  each  can  exert  some  influence  over  the  conduct  of 
the  other,  and  thus  to  some  extent  provide  for  his  own  security,  yet 
that  it  could  not  apply  where  two  or  more  are  employed  in  different 
departments  of  duty,  at  a  distance  from  each  other,  and  whore  one 
can  in  no  degree  control  or  influence  the  conduct  of  another.  But  we 
think  this  is  founded  upon  a  supposed  distinction,  on  which  it  would 
be  extremely  flilTieult  to  establish  a  practical  rule.  When  the  object 
to  be  accomplished  is  one  and  the  same,  when  the  employers  are  the 
same,  and  tbe  several  persons  employed  derive  their  authority  and 
their  compensation  from  the  same  source,  it  would  be  extremely  dif- 
ficult to  distinguish  what  constitutes  one  department  and  what  a 


CHAP.   III.]  NEGLIGENCE.  175 

distinct  department  of  duty.  It  would  vary  with  the  circumstances 
of  every  case.  If  it  were  made  to  depend  upon  the  nearness  or  dis- 
tance of  the  persons  from  each  other,  the  question  would  immediately 
arise,  how  near  or  how  distant  must  they  be  to  be  in  the  same  or 
different  departments.  In  a  blacksmith's  shop,  persons  working  in 
the  same  building,  at  different  fires,  may  be  quite  independent  of 
each  other,  though  only  a  few  feet  distant.  In  a  ropewalk  several 
may  be  at  work  on  the  same  piece  of  cordage,  at  the  same  time,  at 
many  hundred  feet  distant  from  each  other,  and  beyond  the  reach 
of  sight  and  voice,  and  yet  acting  together. 

Besides,  it  appears  to  us  that  the  argument  rests  upon  an  assumed 
principle  of  responsibility  which  does  not  exist.  The  master,  in  the 
case  supposed,  is  not  exempt  from  liability  because  the  servant  has 
better  means  of  providing  for  his  safety  when  he  is  employed  in 
immediate  connection  with  those  from  whose  negligence  he  might 
suffer,  but  because  the  implied  contract  of  the  master  does  not  extend 
to  indemnify  the  servant  against  the  negligence  of  any  one  but  him- 
self; and  he  is  not  liable  in  tort,  as  for  the  negligence  of  his  servant, 
because  the  person  suffering  does  not  stand  towards  him  in  the 
relation  of  a  stranger,  but  is  one  whose  rights  are  regulated  by  con- 
tract, express  or  implied.  The  exemption  of  the  master,  therefore, 
from  liability  for  the  negligence  of  a  fellow-servant  does  not  depend 
exclusively  upon  the  consideration  that  the  servant  has  better  means 
to  provide  for  his  own  safety,  but  upon  other  grounds.  Hence  the 
separation  of  the  employment  into  different  departments  cannot  create 
that  liability  when  it  does  not  arise  from  express  or  implied  contract, 
or  from  a  responsibility  created  by  law  to  third  persons  and  strangers 
for  the  negligence  of  a  servant. 

A  case  may  be  put  for  the  purpose  of  illustrating  this  distinction. 
Suppose  the  road  had  been  owned  by  one  set  of  proprietors  whose  duty 
it  was  to  keep  it  in  repair,  and  have  it  at  all  times  ready  and  in  fit 
condition  for  the  running  of  engines  and  cars,  taking  a  toll,  and  that 
the  engines  and  cars  were  owned  by  another  set  of  proprietors,  paying 
toll  to  the  proprietors  of  the  road,  and  receiving  compensation  from 
passengers  for  their  carriage;  and  suppose  the  engineer  to  suffer  a 
loss  from  the  negligence  of  the  switch-tender.  We  are  inclined  to  the 
opinion  that  the  engineer  might  have  a  remedy  against  the  railroad 
corporation ;  and,  if  so,  it  must  be  on  the  ground  that  as  between  the 
engineer  employed  by  the  proprietors  of  the  engines  and  cars,  and  the 
switch-tender  employed  by  the  corporation,  the  engineer  would  be  a 
stranger,  between  whom  and  the  corporation  there  could  be  no  privity 
of  contract,  and  not  because  the  engineer  would  have  no  means  of  con- 
trolling the  conduct  of  the  switch-tender.  The  responsibility  which 
one  is  under  for  the  negligence  of  his  servant,  in  the  conduct  of  his 
business,  towards  third  persons,  is  founded  on  another  and  distinct 
principle  from  that  of  implied  contract,  and  stands  on  its  own  reasons 


176  FARWELL    V.    BOSTON    AND    WORCESTER   RAILROAD.    [CHAP.    III. 

of  policy.  The  same  reasons  of  policy,  we  think,  limit  this  responsi- 
bility to  the  case  of  strangers,  for  whose  security  alone  it  is  established. 
Like  considerations  of  policy  and  general  expediency  forbid  the  exten- 
sion of  the  principle,  so  far  as  to  warrant  a  servant  in  maintaining  an 
action  against  his  employer  for  an  indemnity  which  we  think  was  not 
contemplated  in  the  nature  and  terms  of  the  employment,  and  which, 
if  established,  would  not  conduce  to  the  general  good. 

In  coming  to  the  conclusion  that  the  plaintiff,  in  the  present  case, 
is  not  entitled  to  recover,  considering  it  as  in  some  measure  a  nice 
question,  we  would  add  a  caution  against  any  hasty  conclusion  as  to 
the  application  of  this  rule  to  a  case  not  fully  within  the  same  prin- 
ciple. It  may  be  varied  and  modified  by  circumstances  not  appearing 
in  the  present  case,  in  which  it  appears  that  no  wilful  wrong  or  actual 
negligence  was  imputed  to  the  corporation,  and  where  suitable  means 
were  furnished  and  suitable  persons  employed  to  accomplish  the  object 
in  view.  We  are  far  from  intending  to  say  that  there  are  no  implied 
warranties  and  undertakings  arising  out  of  the  relation  of  master 
and  servant.  Whether,  for  instance,  the  employer  would  be  respon- 
sible to  an  engineer  for  a  loss  arising  from  a  defective  or  ill-con- 
structed steam-engine;  whether  this  would  depend  upon  an  implied 
warranty  of  its  goodness  and  sufficiency,  or  upon  the  fact  of  wilful 
misconduct  or  gross  negligence  on  the  part  of  the  employer,  if  a 
natural  person,  or  of  the  superintendent  or  immediate  representative 
and  managing  agent  in  case  of  an  incorporated  company  —  are  ques- 
tions on  which  we  give  no  opinion.  In  the  present  case  the  claim  of 
the  plaintiff  is  not  put  on  the  ground  that  the  defendants  did  not 
furnish  a  sufficient  engine,  a  proper  railroad  track,  a  well-constructed 
switch,  and  a  person  of  suitable  skill  and  experience  to  attend  it;  the 
gravamen  of  the  complaint  is  that  that  person  was  chargeable  with 
negligence  in  not  changing  the  switch,  in  the  particular  instance,  by 
means  of  which  the  accident  occurred  by  which  the  plaintiff  sustained 
a  severe  loss. 

It  ought,  perhaps,  to  be  stated,  in  justice  to  the  person  to  whom 
this  negligence  is  imputed,  that  the  fact  is  strenuously  denied  by  the 
defendants,  and  has  not  been  tried  by  the  jury.  By  consent  of  the 
parties,  this  fact  was  assumed  without  trial,  in  order  to  take  the 
opinion  of  the  whole  court  upon  the  question  of  law,  whether,  if  such 
was  the  fact,  the  defendants,  under  the  circumstances,  were  liable. 
Upon  this  question,  supposing  the  accident  to  have  occurred,  and  the 
loss  to  have  l)cen  caused,  by  the  negligence  of  the  person  employed  to 
attend  to  and  change  the  switch,  in  his  not  doing  so  in  the  particular 
case,  the  court  are  of  opinion  that  it  is  a  loss  for  which  the  defendants 
are  not  liable,  and  that  the  action  cannot  be  maintained. 

Plaintiff  nonsuit.'^ 

»  See  Uev.  Laws  of  Mass.,  ch.  100,  fi§  71   ct  sqq. 


CHAP.   III.]  NEGLIGENCE.  177 


CONSOLIDATED  COAL  COMPANY  v.  HAENNL 

Supreme   Court   of    Illinois,    October,    1893.      146    111.    G14. 

Action  for  negligence,  whereby  the  plaintiff  received  bodily  in- 
juries. These  were  sustained  in  the  raising  an  iron  cylinder  smoke- 
stack 35  feet  long  and  weighing  3800  pounds,  in  the  defendant's  mine 
No.  9.  The  plaintiff  was  a  blacksmith  employed  in  defendant's  mine 
No.  10,  of  which  one  Weissenborn  was  "  pit  boss,"  one  Balke  "  top 
boss,"  and  one  Hansinger  "boss  carpenter."  One  Hebenstreit  was 
superintendent  of  the  two  mines.  The  smoke-stack  to  be  raised  in 
mine  No.  9  was  an  eighth  of  a  mile  from  the  plaintiff's  blacksmith 
shop  in  mine  No.  10;  and  the  plaintiff  was  ordered  by  Weissenborn  to 
go  there  and  help  in  the  raising,  which  he  did.  While  the  plaintiff, 
under  the  orders  of  Hebenstreit,  was  pulling  upon  the  steadying-rope, 
the  stack,  now  in  the  air,  slipped  in  the  rope  holding  it,  became  dis- 
engaged from  its  supports,  and  fell,  cutting  off  the  plaintiff's  leg  in 
the  course  of  its  fall.  All  the  above-named  men  of  the  defendant  were 
directing  the  work  at  the  time.  Objection  was  made  by  the  defendant 
to  certain  instructions  given  to  the  jury,  the  nature  of  which  appears 
in  the  opinion  of  the  court. 

Verdict  for  the  plaintiff,  and  special  findings,  that  the  defendant 
was  negligent  in  the  matter,  first  by  removing  the  plaintiff  from  his 
professional  job,  and  secondly,  by  improper  arrangements  for  raising 
the  smoke-stack.  Judgment  accordingly,  which  was  affirmed  by  the 
Appellate  Court. 

Magruder,  J.  Objections  are  made  to  the  two  instructions  given  to 
the  jury  on  behalf  of  the  plaintiff.  The  first  instruction  lays  down, 
as  one  of  the  conditions  to  a  right  of  recovery,  that  the  jury  shall 
"  believe  from  the  greater  weight  of  the  evidence  that  the  plaintiff  was 
employed  by  the  defendant  as  blacksmith,  and  that,  while  so  employed, 
Weissenborn,  or  some  other  officer  or  agent  of  the  defendant,  having 
authority,  ordered  and  directed  the  plaintiff  to  assist  in  hoisting  and 
putting  in  place  a  smoke-stack  to  the  furnace  connected  with  the  coal 
mine  operated  by  defendant,  and  .  .  .  that  hoisting  and  putting  in 
place  a  smoke-stack  was  no  part  of  the  work  which  plaintiff  had  con- 
tracted to  perform  for  the  defendant."  In  regard  to  this  portion  of 
the  instruction,  counsel  for  appellant  says :  "  The  instruction  proceeds 
upon  the  supposition  that  there  was  evidence  tending  to  show  that 
the  work  appellee  was  engaged  in  was  not  within  the  scope  of  his  duty ; 
there  was  no  such  evidence."  The  appellant  is  not  in  a  position  to 
make  the  objection  thus  urged,  inasmuch  as  it  asked  the  court  to 
give  and  the  court  did  give  in  its  behalf  an  instruction,  of  which  the 
following  is  the  first  paragraph :  "  The  court  instructs  the  jury  that. 


178  CONSOLIDATED    COAL    COMPANY   V.    HAENNI.         [CHAP.    III. 

in  order  to  recover  in  this  case,  the  plaintiff  must  have  proved  by  i\ 
preponderance  of  the  evidence,  not  only  that  it  was  not  within  the 
scope  of  his  employment  to  be  assisting  at  the  work  he  was  engaged 
in  at  the  time  of  his  injury,  but  also  that  some  servant  of  defendant 
was  guilty  of  some  act  of  negligence  which  caused  plaintiff's  injury/' 
We  do  not  deem  it  necessary  to  enter  into  a  discussion  of  the  evidence, 
if  the  record  were  in  such  shape  as  to  justify  us  in  doing  so,  in  order 
to  determine  whether  the  proof  does  or  does  not  tend  to  show  that 
raising  the  smoke-stack  was  not  within  the  scope  of  plaintiff's  duties 
as  blacksmith.  If  plaintiff's  instruction  is  wrong  in  the  respect 
indicated,  the  defendant's  instruction  is  chargeable  with  the  same 
fault.  The  latter  instruction  leaves  it  to  the  jury  to  find  from  the 
preponderance  of  the  evidence  the  existence  of  a  fact,  which  is  now 
claimed  to  be  unsupported  by  any  testimony  at  all. 

The  defendant  has  no  right  to  complain  of  error  in  an  instruction 
given  for  the  plaintiff,  when  like  error  appears  in  an  instruction  given 
at  the  defendant's  request.  Clemson  v.  State  Bank  of  Illinois,  1  Scam. 
45;  Pierce  v.  Millay,  62  111.  133;  Northern  L.  Packet  Co.  v.  Bin- 
ninger,  70  Id.  571 ;  Calumet  Iron  and  Steel  Co.  v.  Martin,  115  Id. 
358;  Ochs  v.  The  People,  134  Id.  399;  I.  C.  R.  E.  Co.  v.  Latimer, 
128  Id.  163;  L.  E.  &  W.  R.  R.  Co.  v.  Middleton,  142  Id.  550.  This 
doctrine  was  thus  succinctly  stated  in  Ochs  v.  The  People,  supra,  in 
the  following  words :  "  Surely,  it  is  not  for  the  plaintiffs  in  error  to 
complain  of  an  instruction  when  they  ask  one  of  the  same  kind 
themselves."    Chapman  v.  Barnes,  29  App.  Ct.  Rep.  184. 

The  first  instruction  also  predicates  plaintiff's  right  to  a  recovery 
upon  the  belief  by  the  jury  "  from  the  greater  weight  of  the  evidence," 
"  that  hoisting  and  putting  in  place  a  smoke-stack  in  the  way  the 
smoke-stack  in  question  was  being  hoisted  and  put  in  place,  if  such 
was  shown  from  the  evidence,  was  extra-hazardous."  Counsel  makes 
the  following  objection  to  this  part  of  the  instruction:  "It  supposes 
that  there  was  evidence  that  the  work  was  extra-hazardous,  when  there 
was  no  evidence  except  the  accident  itself." 

When  a  servant  enters  into  a  contract  of  hiring  with  the  master, 
he  assumes  all  the  risks  ordinarily  incident  to  the  employment,  and 
is  presumed  to  have  contracted  with  reference  to  such  risks  (Wood's 
Law  of  Master  and  Servant,  §  326).  But  where  a  servant  is  ordered 
by  the  master  to  do  work  outside  of  his  regular  employment,  and 
which  is  different  in  character  from  that  embraced  in  his  regular  con- 
tract of  hiring,  and  brings  him  into  association  with  a  different  class 
of  employees,  he  does  not,  by  obeying  such  orders,  necessarily  thereby 
assume  the  risks  or  hazards  incident  to  the  new  work.  The  Pitts., 
Cin.  and  St.  L.  Ry.  Co.  v.  Adams,  105  Ind.  151.  The  hazards  inci- 
dent to  the  new  work  may  be  considered  extra-hazardous  as  being 
outside  of  the  regular  employment,  and  additional  to  the  risks  thereof. 
Ab  the  instructions  of  both  parties  left  it  to  tlie  jury  to  determine 


CHAP.   Ill,]  NEGLIGENCE.  179 

whether  or  not  the  hoisting  of  the  smoke-stack  was  outside  of  plain- 
tiff's duties  as  a  blacksmith,  their  decision  of  this  question  in  the 
affirmative  would  necessarily  involve  a  finding  on  their  part  that  the 
hazards  of  the  additional  work  were  extra. 

The  evidence  tends  to  show,  that  the  tackle  and  ropes  and  blocks 
were  so  carelessly  and  negligently  adjusted  as  to  cause  the  smoke- 
stack to  slip,  and  the  rope  to  become  detached  from  the  hook  at  the 
top  of  the  guy-pole.  The  slipping  of  the  rope  from  the  hook  was  due 
either  to  such  careless  adjustment,  or  to  the  failure  to  place  upon  the 
hook  some  protection  which  would  keep  the  rope  in  its  place.  In 
other  words,  the  proof  tends  to  show,  that  the  accident  occurred, 
either  because  of  the  carelessness  and  incompetency  of  those  who 
arranged  the  hoisting  apparatus  and  fixed  it  and  placed  it  in  posi- 
tion, or  because  of  defects  in  the  apparatus  itself.  Among  the  risks 
incident  to  the  business,  which  the  servant  is  understood  to  take  upon 
himself  by  the  contract  of  hiring,  are  those  arising  from  the  careless 
or  wrongful  acts  of  fellow-servants  (Wood's  Law  of  Master  &  Servant 
§  427).  But  the  assumption  by  the  servant  of  risks  resulting  from  the 
negligence  of  his  fellow-servants  is  subject  to  the  implied  undertaking 
of  the  master,  that  he  will  use  all  reasonable  care  to  furnish  safe 
premises,  machinery  and  appliances,  and  to  employ  competent  and 
prudent  co-employees.  P.  C.  &  St.  L.  Co.  Ky.  v.  Adams,  supra; 
Wood's  Law  of  Master  &  Servant  §§329  and  416.  When  the  master 
fails  to  furnish  suitable  machinery  and  to  see  that  it  is  properly 
protected,  or  to  employ  careful  and  prudent  servants  to  manage  and 
operate  such  machinery,  the  risks  resulting  from  such  failure  are 
extra-hazardous,  and  such  extra  hazards  are  not  among  the  risks 
which  the  employee  assumes  as  a  part  of  his  contract  of  service.  U.  S. 
Rolling  Stock  Co.  v.  Wilder,  116  111.  100.  Hence,  we  do  not  think 
that  the  instruction  was  erroneous  in  directing  the  attention  of  the 
jury  to  the  question,  whether  or  not  the  work  of  hoisting  the  smoke- 
stack, by  means  of  the  apparatus  used  for  that  purpose,  was  extra- 
hazardous. 

The  instruction  further  predicates  the  right  of  recovery  upon  the 
belief  of  the  jury  from  the  greater  weight  of  the  evidence,  that  plain- 
tiff was  inexperienced,  and  did  not  have  the  requisite  skill  or  knowl- 
edge to  perform  the  work  of  hoisting  and  putting  in  place  the 
smoke-stack,  and  did  not  see  or  know  the  dangers  and  risks  of  the 
work,  and,  by  the  exercise  of  ordinary  observation  and  diligence 
under  all  the  facts  and  circumstances  surrounding  him  at  the  time 
so  far  as  shown  by  the  evidence,  would  not  have  seen  or  known  such 
dangers  and  risks;  and  that  his  want  of  knowledge  or  skill,  if  shown 
by  the  proof,  was  known  to  the  defendant,  or  would  have  been  known 
by  the  exercise  of  ordinary  diligence ;  and  that  the  defendant  did  not 
give  him  notice  or  warning  of  the  danger  of  hoisting  and  putting  in 
place  the  smoke-stack,  if  such  danger  is  shown  by  the  evidence;  and 


180  CONSOLIDATED    COAL    COMPANY    V.    IIAENNI.       [CHAP.    III. 

that  Weissenborn  (the  pit  boss  of  mine  No.  10)  was  superior  in  au- 
thority to  plaintiff,  and  it  was  the  latter's  duty  to  obey  the  orders  and 
directions  of  Weissenborn  if  the  evidence  shows  that  such  orders 
were  given;  and  that  it  was  within  the  scope  of  Weissenborn's  author- 
ity to  put  said  smoke-stack  in  place;  and  that,  while  plaintiff  was 
engaged  in  hoisting,  etc.,  he  exercised  ordinary  care  and  caution  for 
his  own  safety,  and  was  injured  as  alleged  in  the  declaration;  and 
that  the  injury  was  caused  by  the  negligence  of  the  defendant,  etc., 
and  was  the  direct  result  of  the  authority  of  Weissenborn  over  plain- 
tiff. Counsel  for  appellant  objects  to  this  portion  of  the  instruction, 
because,  he  says,  it  assumes  that  the  work  done  by  plaintiff  required 
skill  and  experience,  whereas  the  plaintiff  did  nothing  but  pull,  with 
others,  on  one  of  the  ropes,  and  was  therefore  doing  what  required 
no  skill  or  experience;  and  because  of  the  assumption  alleged  to  be 
embodied  in  the  instruction,  that  there  was  some  danger,  and  that 
the  defendant  knew  of  the  danger,  and  was  under  obligations  to  give 
plaintiff  notice  of  it;  and  because  of  the  alleged  absence  of  any 
negligence  on  the  part  of  the  defendant  either  in  the  matter  of  hoist- 
ing the  smoke-stack,  or  in  ordering  plaintiff  to  assist  in  doing  so. 

The  testimony  tends  to  show,  that  plaintiff  was  employed  by  the 
company  to  do  the  work  of  a  blacksmith,  and  had  never  before  helped 
to  raise  a  smoke-stack  either  by  means  of  the  apparatus  employed 
by  the  defendant  when  the  injury  occurred,  or  otherwise.  The  evi- 
dence also  tends  to  show,  that  plaintiff  was  called  suddenly  from  his 
shop  to  assist  in  hoisting  the  stack,  and  that  all  the  arrangements  for 
effecting  such  hoisting  were  completed  when  he  arrived  upon  the 
ground,  so  that  he  had  no  opportunity  to  observe  or  inspect  them. 

We  are  not  prepared  to  say  that  the  raising  of  an  immense  iron 
smoke-stack,  weighing  3800  pounds,  and  placing  it  in  position  upon 
a  base  prepared  for  it,  is  not  an  operation  which  requires  some  expe- 
rience and  "  skill  or  knowledge."  The  instruction  properly  leaves  it 
to  the  jury  to  determine  from  the  evidence,  whether  or  not  the  hoist- 
ing of  the  stack  in  the  mode  adopted  "  required  peculiar  skill  or 
knowledge  to  perform  it  with  safety."  While  it  may  be  true,  that 
the  mere  piilling  on  a  rope  docs  not  require  any  skill,  yet  it  may 
require  skill  or  knowledge  to  calculate  and  understand  the  effect  of 
such  exertion  upon  the  apparatus  witli  wliich  tlie  rope  is  connected, 
and  upon  the  action  of  such  apparatus  in  properly  lifting  the  weight 
attached  to  it. 

The  material  question,  which  was  and  should  have  been  presented 
to  the  jury,  was,  whether  the  plaintiff,  under  all  the  circumstances, 
had  sufficient  experience  or  knowledge  to  understand  the  hazards  of 
the  extra  work  whicli  lie  was  required  to  perform.  The  instruction 
cannot  be  said  to  assume  ilint  there  was  danger  connected  witli  the 
hoisting,  as  it  uses  the  r|ii!ilifying  words,  "if  any  such  danger  is 
shown  by  the  evidence."     Wliere  a  servant  is  temporarily  engaged  in 


CHAP.   III.]  NEGLIGENCE.  181 

more  hazardous  work  than  that  for  which  he  was  employed,  he  takes 
upon  himself  all  such  risks  incident  to  the  work,  as  are  equally  open 
to  the  observation  of  himself  and  the  master.  2  Thompson  on  Nog., 
page  97(),  §  7.  It  is  when  the  servant  works  with  defective  machinery, 
knowing  it  to  be  defective  or  dangerous,  that  he  assumes  the  risks 
incident  to  its  use.  "  Not  only  the  defects,  but  the  dangers,  must  be 
known  to  him."  Wood's  Law  of  Master  &  Servant,  §§372,  376; 
Pierce  on  Eailroads,  pages  378,  379.  As  to  the  master's  knowledge, 
he  cannot  screen  himself  from  liability  upon  the  ground  that  he  did 
not  know  of  the  defects  in  his  machinery,  or  of  the  incompetency  of 
his  servants,  if  he  might  have  known  of  them  by  the  exercise  of  due 
care.  Wood's  Law  of  Master  &  Servant,  §§  330,  347.  It  has  been 
held,  that  the  master  or  foreman  placed  in  charge  of  and  conducting 
a  manufacturing  business  will  be  presumed  to  know  and  be  familiar 
with  the  dangers,  latent  and  patent,  ordinarily  accompanying  the 
business.  Smith  v.  Peninsular  Car  Works,  50  Mich.  501.  We  see 
no  reason  why  the  same  presumption  of  familiarity  with  latent  and 
patent  dangers  should  not  exist,  where  a  master  or  superintendent 
is  placed  in  charge  of,  and  authorized  to  use,  such  a  hoisting  apparatus 
as  is  described  in  this  record.  The  law  will  imply  and  infer  notice 
of  any  defect  which,  by  the  use  of  ordinary  care,  might  have  been 
known  to  the  master.  Goff  v.  T.  St.  L.  &  K.  C.  R.  R.  Co.,  28  App. 
Ct.  Rep.  529. 

As  to  the  master's  duty  to  give  notice,  the  law  is  that,  if  there  are 
latent  defects  or  hazards  incident  to  an  occupation,  of  which  the 
master  knows  or  ought  to  know,  and  which  the  servant,  from  igno- 
rance or  inexperience,  is  not  capable  of  understanding  and  appreci- 
ating, it  is  the  master's  duty  to  warn  or  inform  the  servant  of  them. 
Smith  V.  Peninsular  Car  Works,  supra;  Wood's  Law  of  Master  & 
Servant,  §  349;  Lalor  v.  C.  B.  &  Q.  R.  R.  Co.,  52  111.  401;  Con- 
solidated Coal  Co.  V.  Wombacher,  134  Id.  57. 

The  question  of  negligence  was  submitted  to  the  jury  by  the  first 
instruction  given  for  the  defendant  as  above  quoted,  and,  therefore, 
the  defendant  is  estopped  from  now  claiming  that  there  was  no  proof 
of  negligence.  Where  the  master  orders  the  servant  into  a  service 
which  he  did  not  undertake  to  perform,  and  while  in  such  service 
the  servant  is  injured,  the  question  of  negligence  must  depend  upon 
the  facts  and  circumstances  of  each  case.  14  Am.  and  Eng.  Enc.  of 
Law,  page  861.  The  question  whether  certain  special  service  outside 
of  the  contract  can  be  reasonably  required  of  the  servant,  depending 
as  it  does  upon  the  contract,  and  the  character  of  the  service,  and 
the  necessities  of  the  master,  must  be  left  to  the  jury  to  determine. 
Wood's  Law  of  Master  &  Servant,  §  89.  We  do  not"  think  that  the 
objections  urged  should  be  sustained. 

It  appears,  that  at  the  close  of  plaintiff's  case,  the  court  excluded 
from  the  jury  certain  evidence  in  regard  to  putting  up  the  smoke- 


182  TOY   V.    UNITED   STATES    CARTRIDGE    COMPANY.       [CHAP.    III. 

stack  after  the  occurence  of  the  injury.  Counsel  for  appellant  urges, 
that  the  language  of  the  plaintiff's  first  instruction  was  broad  enough 
to  authorize  the  jury  to  consider  this  excluded  evidence.  We  do  not 
think  that  the  instructions,  in  requiring  the  jury  to  base  their  find- 
ings upon  the  evidence,  can  be  construed  as  referring  to  any  other 
evidence  than  that  which  was  not  excluded.  If  such  objection  in  this 
case  can  be  properly  urged  against  the  instructions  asked  by  and 
given  for  one  party,  it  can  with  equal  propriety  be  made  to  those 
asked  by  and  given  for  the  other  party.  Where  a  jury  is  required  to 
believe  certain  facts  from  the  evidence,  it  has  always  been  understood 
that  the  reference  is  to  the  evidence  which  is  not  ruled  out  by  the 
court,  and  which  is  therefore  rightfully  in  the  case. 

Judgment  affirmed. 


TOY  V.  UNITED  STATES  CAETEIDGE  COMPANY. 

Supreme  Court  of  Massachusetts,  March,  1893.     159  Mass.  313. 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff,  while  in  the 
defendant's  employ,  by  the  breaking  of  a  punch  in  a  cartridge  ma- 
chine which  she  was  operating.  Trial  in  the  Superior  Court,  before 
Hopkins,  J.,  who,  at  the  defendant's  request,  directed  the  jury  to 
return  a  verdict  for  the  defendant;  and  the  plaintiff  alleged  excep- 
tions.    The  facts  appear  in  the  opinion. 

Morton,  J.  There  is  no  doubt  that  there  was  evidence  for  the  jury 
on  the  question  of  the  plaintiff's  due  care.  Indeed,  the  defendant 
does  not  argue  that  there  was  not.  The  real  question  is  whether  there 
was  any  evidence  of  negligence  on  the  part  of  the  defendant.  It  was 
the  duty  of  the  defendant,  in  the  exercise  of  reasonable  care,  to  see 
that  the  machine  on  which  the  plaintiff  was  set  to  work  was  in  a  safe 
condition,  and  was  suitable  for  the  purpose  for  which  it  was  used. 
This  obligation  applied  to  all  its  parts.  The  punch  formed  a  part  of 
it.  Rice  V.  King  Philip  Mills,  14-4  Mass.  229.  It  was  fitted  to  and 
inserted  in  it,  was  necessary  to  its  use,  and  was  furnished  by  the 
defendant  for  use  in  it,  and  as  a  part  of  it.  A  machine  may  be  so 
constructed,  and  its  operation  may  be  such,  as  to  call  for  a  frequent 
replacement  of  one  or  more  of  its  constituent  parts.  Such  parts  when 
adjusted  in  the  machine  become  as  much  a  part  of  it  as  if  included 
in  the  original  construction,  and  a  defect  in  one  of  them  is  a  defect 
in  the  machine.  The  duty  of  seeing  that  such  parts  are  not  defective 
is  one  incuinbont  on  tlic  master.  It  is  not  a  matter  of  ordinary  repair 
from  day  to  day,  which  may  be  intrusted  to  a  servant.  The  defendant 
could  not  therefore  avoid  responsibility  by  delegating  this  duty  to 
persons  whom  it  believed  to  be  competent,  and  who  were  in  fact  com- 


CHAP.   III.]  NEGLIGENCE.  183 

petcnt  to  perform  it.  If  the  injury  to  the  plaintiff  was  due  to  a  defect 
in  the  punch,  which  might  have  been  discovered  by  the  exercise  of 
reasonable  care  on  their  part,  but  was  not,  the  defendant  is  liable 
for  their  negligence.  Moynihan  v.  Hills  Co.,  146  Mass.  586,  592,  and 
cases  cited. 

The  plaintiff  testified  that  she  was  required  to  examine  the  car- 
tridge shells  from  time  to  time  to  see  if  they  were  scratching;  and 
that  on  the  day  of  the  accident  she  found  that  they  were  scratching, 
and  informed  the  foreman  of  it,  and  he  sent  for  one  McFarland,  the 
second  hand,  to  look  after  the  machine.  McFarland  took  out  the  dies 
and  punch  and  put  in  new  dies  and  a  new  punch,  and  then  told  the 
plaintiff  to  start  the  machine  by  a  signal,  which  she  did.  The  first 
time  the  punch  went  down  through  the  plate  and  dies  all  right,  there 
being  no  shell;  but  the  second  time  it  broke  and  caused  the  injury 
complained  of.  The  plaintiff  further  testified  that  before  she  started 
the  machine  she  saw  a  small  black  mark  extending  half-way  round 
the  punch  about  in  the  middle  of  the  punch ;  and  in  further  descrip- 
tion of  it  said  "  that  she  did  not  know  what  this  black  mark  meant, 
but  that  it  looked  like  a  knitting  needle  that  had  gone  rusty  and 
black."  There  was  also  testimony  tending  to  show  that  the  punch 
broke  in  the  middle,  and  some  of  the  witnesses  said  that  they  never 
knew  before  of  a  punch  breaking  in  the  middle,  but  that  they  usually 
bent  or  broke  at  the  point.  It  also  appeared  that  after  the  accident 
the  broken  punch  was  examined  by  the  foreman  and  McFarland ;  tliat 
the  former  passed  it  to  one  Dimon,  who  was  the  defendant's  agent 
and  superintendent,  and  who  examined  it  and  passed  it  back  to  the 
foreman,  who  threw  it  away;  and  that  the  only  other  person  who 
appeared  to  have  seen  it  was  a  woman  who  worked  on  a  machine  near 
the  plaintiff,  and  who  testified  that  she  "  could  see  that  it  [the  punch] 
was  broken  in  one  place  in  the  middle,"  but  that  "  she  did  not  know 
what  the  condition  of  the  broken  surfaces  was,  as  the  foreman  sent  he 
to  her  work."  We  think  it  would  have  been  competent  on  this  evi- 
dence for  the  jury  to  find  that  there  was  a  defect  in  the  punch  in  the 
middle,  and  that  the  break  in  the  middle  was  due  to  it.  It  is  true 
that  the  foreman  and  McFarland,  who  were  called  as  witnesses  by 
the  defendant,  testified  that  they  saw  nothing  the  matter  with  the 
punch,  and  that  Dimon,  who  was  called  by  the  plaintiff,  testified  that, 
though  he  found  on  examining  it  with  a  microscope  there  was  a  flaw 
in  it,  the  flaw  did  not  extend  to  the  outside,  and  that  he  did  not  think 
it  was  possible  to  have  discovered  the  defect  which  he  saw  on  the 
inside  of  the  punch,  and  that,  in  his  judgment,  the  flaw  which  he 
found  was  not  sufficient  to  have  caused  the  defect.  He  also  testified 
that  bad  punches  were  usually  thrown  away.  But  the  weight  to  be 
given  to  all  this  evidence  was  clearly  for  the  jury.  We  cannot  say 
that  there  was  no  evidence  of  a  defect  in  the  punch,  or  that,  if  there 
was  one,  there  was  no  evidence  that  the  accident  was  not  caused  by  it. 


184  MCPHEE   V.    SCULLY.  [CHAP.    III. 

It  was  also  a  question  for  the  jury,  under  all  the  circumstances, 
whether  the  failure  to  discover  the  defect,  if  there  was  one,  was  due 
to  negligence  on  the  part  of  the  defendant,  or  of  those  charged  by  it 
with  the  duty  of  making  and  examining  the  punches.  The  material 
from  which  and  the  manner  in  which  the  punches  were  made,  and 
the  system  of  inspection  adopted  by  the  defendant,  were  all  before 
the  jury,  and  it  was  for  them  to  say  whether  they  were  all  that  reason- 
able care  required,  or  whether  a  more  careful  inspection  should  have 
been  made,  and  whether,  if  it  had  been  made,  the  defect  would  have 
been  discovered.  There  was  testimony  that,  if  there  was  a  crack  on 
the  outside,  it  might  be  filled  up  in  polishing  or  in  turning  down  the 
punch.  It  was  for  the  jury  to  say  also  whether  the  defect,  if  there 
was  one,  was  such  that  failure  to  discover  it  afforded  evidence  of 
negligence  on  the  part  of  the  person  or  persons  charged  with  the  duty 
of  making  or  inspecting  the  punch. 

The  testimony  as  to  what  Dimon  said  at  the  former  trial  was 
rightly  excluded  on  the  ground  on  which  it  was  evidently  offered.^ 
Eichstain  v.  Washington  Mills,  157  Mass.  538. 

A  majority  of  the  court  is  of  opinion  that  the  entry  must  be. 

Exceptions  sustained. 


McPHEE  V.  SCULLY. 

Supreme  Court  of  Massachusetts,  March,  1895.     163  Mass.  216. 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff,  while  in  the 
defendant's  employ,  by  having  his  hand  crushed  in  a  pile-driver. 
The  declaration  contained  two  counts,  the  first  of  which  was  at  com- 
mon law,  and  the  other  under  the  employers'  liability  act,  St.  1887, 
c.  270.^  At  the  trial,  the  jury  returned  a  verdict  for  the  plaintiff; 
and  the  defendant  alleged  exceptions. 

Barker^  J.  The  defendant  contends  that  the  verdict  against  him 
should  be  set  aside;  first,  because  the  evidence  does  not  sustain  the 
burden  of  showing  that  the  plaintiff  was  in  the  exercise  of  due  care; 
secondly,  because  the  plaintiff  ought  to  be  held  to  have  assumed  the 
risk;  thirdly,  that  the  accident  happened  through  the  negligence  of 
a  fellow  servant;  and  fourthly,  that,  if  the  evidence  shows  a  cause  of 
action,  the  proof  does  not  support  the  allegations  of  the  declaration. 

The  work  was  driving  piles.  The  plaintiff  was  one  of  a  gang  of 
seven  men,  of  whom  one  Fahey  was  foreman.  At  the  time  of  the 
accident  the  plaintiff  was  aloft  standing  on  a  joist,  swinging  and 
steadying  a  suspended  pile,  to  put  it  in  position.     This  work  was  to 

>  DImon,  who  was  called  as  a  witness  by  the  defendant  at  the  former  trlnl,  testi- 
fied, on   froHH-cxamlnatlfm,   that  the  flaw   In  the  punch  might   have  extended  to  t' 
outHlde.  and  that  It  ml>,'ht  hiive  been  discovered. 

MO'V.   Laws,  c.    lOO,  Sg  71-70. 


CHAP.   Ill,]  NEGLIGENCE.  185 

be  done  by  applying  his  strength  directly  to  the  pile,  and  he  put  his 
left  hand  on  top  of  the  pile  and  his  right  arm  between  the  pile  and 
one  of  the  upright  beams  between  which  the  pile  stood.  The  driving- 
hammer  was  five  feet  above  him,  upheld  by  a  chocking-block  on  which 
it  rested  while  the  piles  were  placed  in  position.  The  placing  of  his 
hand  upon  the  top  of  the  pile,  directly  in  the  line  of  descent  of  the 
hammer  if  it  should  fall,  is  the  act  which  the  defendant  contends 
should  charge  the  plaintiff  with  contributory  negligence.  But  the 
fall  of  the  hammer  while  the  plaintiff  was  at  his  post  was  not  to  be 
expected;  and  if  it  should  occur,  there  was  no  position  in  which 
he  could  do  his  work  of  which  safety  could  be  predicated.  He  had  a 
right  to  expect  that  the  hammer  would  not  fall,  and  the  jury  might 
find  that  he  was  in  the  exercise  of  ordinary  care. 

Whether  he  had  assumed  the  risk  of  injury  from  the  accidental  fall 
of  the  driving-hammer  is  a  different  question.  It  was  obvious  that, 
if  it  should  fall  while  he  was  at  work  aloft,  his  serious  injury  would 
be  an  almost  inevitable  result.  It  was  also  obvious  that  the  hammer 
would  fall  if  the  chocking-block  or  its  supports  were  defective,  or  if 
the  block  should  be  accidentally  or  intentionally  displaced.  He  con- 
sented to  work  exposed  to  this  danger  of  injury  by  the  fall  of  the 
hammer  as  the  machine  was  constructed,  and  he  also  consented  to 
work  exposed  to  this  danger,  so  far  as  it  might  be  caused  by  the 
carelessness  of  his  fellow  workmen.  There  was  no  evidence  from 
which  it  could  be  found  that  the  pile-driver  or  any  of  its  appliances 
were  out  of  repair  or  defective;  and  the  immediate  cause  of  the  un- 
expected fall  of  the  hammer  was  the  accidental  pulling  away  of  the 
chocking-block  by  the  strain  of  the  gypsy  fall,  which  a  drunken  fellow 
workman,  who  had  the  fall  in  hand,  negligently  allowed  to  get  over 
the  block  in  such  a  way  that  when  made  taut  it  pulled  the  block  out 
from  under  the  hammer.  The  end  of  the  chocking-block  projected 
some  three  inches  beyond  the  outer  face  of  the  upright  beam  against 
which  it  stood  when  in  place  under  the  hammer,  and  it  was  obvious 
that  the  gypsy  fall  might  get  over  the  projecting  end,  and  that,  if  the 
fall  should  be  straightened  when  attached  to  a  pile  and  over  the  pro- 
jecting end  of  the  chocking-block,  the  block  might  be  pulled  from  its 
place  and  the  hammer  released.  These  obvious  risks  the  plaintiff 
must  be  taken  to  have  understood  and  to  have  assumed.  But  this  is 
not  conclusive  against  his  right  to  have  compensation  for  his  injury, 
if  upon  the  evidence  there  was,  back  of  the  dangers  of  which  he  as- 
sumed the  risk,  some  breach  of  duty  towards  him  on  the  part  of  his 
employer  which  could  fairly  be  found  to  have  been  the  cause  of  the 
accident.  Such  breaches  of  duty  are  charged  in  each  count  of  the 
declaration.  In  the  first  count,  the  employing  of  careless,  incompe- 
tent, and  reckless  fellow  workmen,  whose  carelessness,  incompetency, 
and  recklessness  were  known,  or  might  with  reasonable  care  and  dili- 
gence have  been  known,  to  the  defendant,  —  a  breach  of  duty  at 


186  MCPHEE   V.    SCULLY.  [CHAP.    III. 

common  law.  In  the  second  count,  negligence  of  a  person  in  the 
defendant's  service,  intrusted  with  and  exercising  superintendence, 
whose  sole  or  principal  duty  was  that  of  superintendence,  —  a  breach 
of  duty  imputed  to  the  employer  by  force  of  the  St.  1887,  c.  270.^  The 
evidence  justified  a  finding  that  the  foreman  and  the  workman  who 
got  the  fall  foul  of  tlie  chocking-block  were  drunk,  and  others  of  the 
men  had  been  drinking  at  their  work,  from  a  bottle  of  liquor  for 
which  the  foreman  had  sent  one  of  the  men.  The  foreman  had  been 
working  for  the  defendant  eight  or  nine  years,  and  the  defendant 
testified  that  he  never  saw  him  intoxicated  at  his  work  before  the 
accident;  that  he  had  seen  him  intoxicated  a  good  many  times,  but 
not  at  his  work;  that  he  never  saw  him  under  the  influence  of  liquor 
at  his  work ;  that  he  never  saw  him  at  the  work  but  that  he  was  able 
to  do  his  work  right;  and  that  ever  since  he  knew  him  the  foreman's 
habits  had  been  as  he  described.  But  one  of  the  men  gave  evidence 
from  which  the  jury  might  find  that  the  foreman  had  before  this  occa- 
sion drank  liquor,  and  been  intoxicated  at  his  work  when  the  defend- 
ant was  present,  and  the  defendant's  general  superintendent  testified 
that  he  had  seen  the  foreman  a  number  of  times  under  the  influence 
of  liquor,  perhaps  half  a  dozen,  and  did  not  state  that  these  were  not 
times  when  the  foreman  was  at  his  work;  and  another  workman  tes- 
tified that  on  a  previous  occasion  the  foreman  had  been  under  the 
influence  of  liquor,  and  compelled  to  go  home  at  noon.  This  evidence 
would  justify  the  jury  in  finding  that  the  foreman  was  an  incompetent 
and  reckless  man,  whom  the  defendant  had  employed  either  knowing 
his  faults  or  chargeable  with  knowledge  of  them.  The  evidence  also 
tended  to  show,  not  only  that  the  foreman  and  the  workman  who 
handled  the  fall  were  drunk  at  the  time  of  the  accident,  but  that  the 
appearance  of  the  latter  showed  him  to  be  drunk.  The  fouling  of  the 
chocking-block  by  the  fall  was  plainly  to  be  seen,  and  the  order  to 
"hoist  again,"  which  caused  the  straightening  of  the  fall  and  the 
displacement  of  the  guard,  was  given  by  the  foreman.  Either  leaving 
the  fall  to  be  handled  by  a  workman  apparently  intoxicated  or  giving 
the  order  to  "  hoist  again  "  when  the  fall  was  foul  of  the  chocking- 
block  might  be  found  to  be  an  act  of  great  carelessness,  resulting 
directly  from  an  unfitness  of  the  foreman,  known  by  the  defendant 
or  with  knowledge  of  which  he  was  chargeable,  and  which  made  it  a 
breach  of  his  duty  toward  the  plaintiff  to  keep  the  foreman  at  work 
with  tlie  plaintiff.  This  breach  of  duty  was  sufficiently  shown  to  have 
been  the  cause  of  the  accident  to  enable  the  jury  to  find  for  the  plain- 
tiff upon  that  ground.  This  is  so,  in  our  opinion,  upon  either  count 
of  the  declaration ;  under  the  first  count,  for  an  injury  resulting  from 
a  breach  of  the  defendant's  duty  to  use  due  care  in  providing  for  the 
plaintiff  proyjor  fellow  workmen;  and  under  the  second  count,  for 
negligence  of  the  foreman  in  giving  the  order  to  "  hoist  again  "  when 

»  Rev.  Law8,  ch.   lOG,  §  71. 


CHAP.    III.]  NEGLIGENCE.  187 

if  he  had  been  careful  he  would  have  seen  that  the  fall  was  foul  of  the 
block,  as  well  as  for  negligently  allowing  the  fall  to  be  handled  by  a 
workman  apparently  intoxicated,  in  each  of  which  acts  the  foreman 
was  exercising  superintendence. 

The  defendant  insists  that  the  plaintiff  did  not  sustain  the  burden 
of  showing  that  the  foreman's  sole  or  principal  duty  was  that  of 
superintendence;  but  while  another  person  was  employed  by  the 
defendant  as  his  general  superintendent,  that  person  was  not  present 
at  the  time.  The  defendant  testified  that  the  foreman  was  foreman 
of  the  gang,  and  had  authority  to  employ  and  dismiss  men,  and  fre- 
quently had  charge  of  the  jobs.  There  was  abundant  evidence  that 
he  had  charge  of  this  work,  and  gave  all  the  directions  which  were 
given,  and  no  testimony  that  he  worked  or  was  expected  to  work  with 
his  own  hands.  The  evidence  required  a  finding  that  on  this  occasion 
at  least  the  foreman's  sole  or  principal  duty  was  that  of  superinten- 
dence. 

The  defendant's  contention  that  the  proof  did  not  support  the 
allegations  of  the  declaration  cannot  be  sustained.  The  charge  in  the 
first  count,  of  employing  incompetent  men,  did  not  rest  alone  upon 
his  employment  of  McQuade,  who  handled  the  fall,  and  was  supported 
by  the  evidence  as  to  the  foreman.  The  specification  in  the  second 
count  as  to  the  negligence  of  the  foreman  "  in  failing  properly  to  use, 
handle,  manage,  and  control  said  pile-driver  and  the  engine,  machin- 
ery, dog,  yoke,  chocking-block  (so-called),  gearing,  ropes,  and  guys 
thereof,"  must,  after  verdict,  the  evidence  having  been  admitted  with- 
out objection,  be  held  to  have  been  supported  by  proof  that  the  fore- 
man negligently  allowed  the  fall  to  be  handled  by  a  drunken  work- 
man, and  that  the  foreman  himself  negligently  gave  the  order  to 
"  hoist  again  "  when  the  fall  was  fouled  with  the  chocking-block. 

Exceptions  overruled. 


O'MALEY  V.  SOUTH  BOSTON  GAS  LIGHT  COMPAN'Y. 

Supreme  Court  of  Massachusetts,  December,   1892.     158  Mass.  135. 

ToET,  under  the  St.  of  1887,  c.  270,^  for  personal  injuries  occasioned 
to  the  plaintiff  while  in  the  defendant's  employ.  Trial  in  the  Supe- 
rior Court,  before  Sherman,  J.,  who,  at  the  defendant's  request, 
directed  the  jury  to  return  a  verdict  for  the  defendant;  and,  at  the 
plaintiff's  request,  reported  the  case  for  the  determination  of  this 
court.  If  the  ruling  was  correct,  the  verdict  was  to  stand ;  otherwise, 
the  verdict  was  to  be  set  aside  and  a  new  trial  granted.  The  facts 
appear  in  the  opinion. 

Knowlton,  J.    The  plaintiff,  while  wheeling  coal  in  a  barrow  on 

*  Rev.  LawB,  c.   106,   §§  71-79. 


188  O'MALEY    v.    gas    light    company.  [chap.    III. 

a  run  in  one  of  the  defendant's  coal  sheds,  fell  off  and  was  injured. 
The  action  is  brought  under  the  Employers'  Liability  Act  (St.  1887, 
c.  270),  for  an  alleged  defect  in  the  ways,  works,  or  machinery  of  the 
defendant,  it  being  contended  that  the  defendant  was  negligent  in 
not  providing  guards  on  the  runs  to  prevent  such  an  accident.  The 
plaintiff  testified,  and  it  was  undisputed,  that  he  had  assisted  in  the 
same  work  at  various  times  during  the  last  fifteen  years,  and  that  the 
coal  shed  and  runs  had  all  the  time  remained  unaltered  in  construc- 
tion. 

If  the  action  were  at  common  law,  it  would  be  too  plain  for  argu- 
ment that  the  plaintifi^  took  the  risk  of  such  accidents  as  that  which 
happened,  and  that  the  defendant  is  not  liable.  Fitzgerald  v.  Con- 
necticut Eiver  Paper  Co.  155  Mass.  155 ;  Mahoney  v.  Dore,  155  Mass. 
513.  But  it  is  contended  that,  under  the  statute  referred  to,  the  rule 
is  different. 

It  is  well  settled  that,  in  the  absence  of  a  special  contract  affecting 
the  rights  and  liabilities  of  the  parties,  the  statute  has  taken  away 
from  defendants,  in  the  cases  mentioned  in  it,  the  defence  that  the 
injury  was  caused  by  the  act  of  a  fellow-servant  of  the  plaintiff.  It 
is  also  established  by  an  adjudication  of  this  court,  and  by  decisions 
under  a  similar  statute  in  England,  that  it  has  not  taken  away  the 
defence  that  the  plaintiff,  knowing  and  appreciating  the  danger,  vol- 
untarily assumed  the  risk  of  it.  Mellor  v.  Merchants'  Manuf.  Co. 
150  Mass.  362;  Thomas  v.  Quartermaine,  18  Q.  B.  D.  685;  Yar- 
mouth V.  France,  19  Q.  B.  D.  647 ;  Thrussell  v.  Handyside,  20  Q.  B, 
D.  359;  Walsh  v.  Whiteley,  21  Q.  B.  D.  371;  Smith  v.  Baker,  [1891] 
A.  C.  325.  Precisely  how  and  when  this  defence  can  be  availed  of  in 
cases  where  the  ways,  works,  and  machinery  of  the  defendant  are 
found  to  be  defective,  has  never  been  decided  in  this  Commonwealth. 
The  nature  of  the  defence  was  somewhat  considered  in  Fitzgerald  v. 
Connecticut  River  Paper  Co.  and  Mahoney  v.  Dore,  ubi  supra,  which 
were  cases  at  common  law,  and  it  was  held  that,  to  be  precluded  from 
recovering  on  this  ground,  the  plaintiff  must  not  only  know  and  ap- 
preciate the  risk,  but  must  assume  it  voluntarily.  The  doctrine  of 
assumption  of  the  risk  of  his  employment  by  an  employee  has  usually 
been  considered  from  the  point  of  view  of  a  contract,  express  or  im- 
plied; but  as  applied  to  actions  of  tort  for  negligence  against  an 
employer,  it  leads  up  to  the  broader  principle  expressed  by  the  maxim. 
Volenti  non  fit  injuria.  One  who,  knowing  and  appreciating  a  danger, 
voluntarily  assumes  the  risk  of  it,  has  no  just  cause  of  complaint 
against  another  who  is  primarily  responsible  for  the  existence  of  the 
danger.  As  between  the  two,  his  voluntary  assumption  of  the  risk 
absolves  the  other  from  any  particular  duty  to  him  in  that  respect, 
and  leaves  each  to  take  such  chances  as  exist  in  the  situation,  without 
a  right  to  claim  anything  from  the  other.  In  such  a  case  there  is  no 
a(;ti')nal)l(!  negligence  on  ihe  pnrt  of  Iiini  who  is  primarily  responsible 


CHAP.   III.]  NEGLIGENCE.  189 

for  the  danger.  If  there  is  a  failure  to  do  his  duty  according  to  a 
high  standard  of  ethics,  there  is,  as  between  the  parties,  no  neglect 
of  legal  duty. 

That  part  of  the  statute  under  which  this  action  is  brought  gives 
a  remedy  only  for  defects  "  which  arose  from,  or  had  not  been  dis- 
covered or  remedied  owing  to,  the  negligence  of  the  employer,  or  of 
any  person  in  the  service  of  the  employer,  and  intrusted  by  him  with 
the  duty  of  seeing  that  the  ways,  works,  or  machinery  were  in  proper 
condition."  A  proceeding  under  it  necessarily  involves  the  question 
whether  there  was  negligence  in  not  having  the  ways,  works,  and 
machinery  in  better  condition.  The  negligence  referred  to  is  the 
neglect  of  a  duty  owed  to  the  plaintiff,  and  not  of  a  general  duty, 
which,  by  reason  of  the  relations  of  the  parties,  does  not  extend  to 
him. 

The  statute  does  not  attempt  to  take  away  the  right  of  the 
parties  to  make  such  contracts  as  they  choose,  which  will  establish 
their  respective  rights  and  duties.  In  the  numerous  enterprises  of 
every  kind  which  involve  the  employment  of  labor,  there  is  necessarily 
almost  every  degree  of  danger  to  employees.  Improvements  are  con- 
stantly being  made  in  the  methods  of  doing  business,  and  in  the  ways, 
works,  and  machinery  used.  The  adoption  of  the  latest  and  best 
machinery  would  often  involve  the  displacement  and  loss  of  that 
which  has  been  but  little  used,  and  which  was  the  best  obtainable  when 
bought.  It  would  be  unreasonable  to  attempt  to  require  every  one 
hiring  laborers  to  have  the  safest  place  and  the  best  machinery  possible 
for  carrying  on  his  business.  It  would  be  an  unwarranted  construc- 
tion of  the  statute,  which  would  tend  to  defeat  its  object,  to  hold 
that  laborers  are  no  longer  permitted  to  contract  to  take  the  risk  of 
working  where  there  are  peculiar  dangers  from,  the  arrangement  of 
the  place  and  from  the  kind  or  quality  of  the  machinery  used.  Noth- 
ing but  the  plainest  expression  of  intention  on  the  part  of  the  Legisla- 
ture would  warrant  giving  the  statute  such  an  interpretation.  We 
have  no  doubt  that  one  may  expressly  contract  to  take  the  obvious 
risks  of  danger  from  inferior  or  defective  machinery  as  well  since 
the  enactment  of  this  statute  as  before.  If  he  does  so,  his  employer 
owes  him  no  duty  in  respect  to  such  risks,  and  if  he  is  hurt  from  a 
cause  included  in  the  contract,  the  defect  is  not  within  the  terms  of 
the  statute,  the  maxim.  Volenti  non  fit  injuria,  applies,  and  he  can- 
not recover.  Whether  he  knows  and  appreciates  the  particulars  of 
the  danger  is  immaterial,  if  he  knows  there  is  danger,  and  expressly 
contracts  in  regard  to  it  without  caring  to  know  the  particulars,  and 
in  such  a  case  he  must  be  deemed  to  encounter  it  willingly.  One  who 
makes  a  contract  to  enter  into  a  new  relation  undertakes  voluntarily 
■what  he  agrees  to  do,  and  his  agreement,  inasmuch  as  the  other  party 
acts  upon  it,  is  to  be  construed  in  reference  to  the  obvious  facts  and 
circumstances  to  which  it  pertains.     When  he  agrees  to  assume  the 


190  o'MALEY   v.    gas    light   company.  [chap.    III. 

risk  from  a  certain  kind  of  machinery,  his  action  is  equally  voluntary 
in  reference  to  every  such  risk,  whether  he  fully  appreciates  the 
danger  or  chooses  to  take  the  risk  of  it  without  knowing  its  extent; 
and  he  absolves  his  employer  from  what  otherwise  would  be  a  duty 
to  make  the  machinery  safer. 

The  same  reason  applies  equally  where  the  employee,  without  any 
express  stipulation  in  regard  to  risks,  enters  a  service  which,  by  rea- 
son of  the  obvious  condition  of  the  ways,  works,  and  machinery,  in- 
volves peculiar  dangers.  Such  a  contract  is  implied  as  ought  to  be 
implied  from  the  situation  and  dealings  of  the  parties,  and  it  has  the 
same  effect  as  if  expressly  made.  The  work  to  be  done  may  have 
special  reference  to  defects  in  the  works  or  machinery.  One  may  be 
hired  to  make  repairs  which  expose  him  to  peculiar  dangers  by  reason 
of  the  condition  of  the  defective  parts.  Surely  it  cannot  be  said  that 
a  workman  does  not  impliedly  contract  t'o  take  the  obvious  risks  from 
the  condition  of  the  machinery,  when  he  agrees  to  do  work  in  the 
repair  of  it.  ISTor  can  it  any  more  be  said  that  he  does  not  impliedly 
make  a  similar  contract,  when  he  agrees  to  work  in  a  business  in- 
volving obvious  dangers  by  reason  of  the  inferior  machinery  with 
which  he  knows  it  is  to  be  carried  on.  He  is  free  to  accept  the  service 
or  not,  as  he  chooses,  and,  if  harm  comes  to  him  by  reason  of  his 
acceptance  of  it,  he  suffers  voluntarily. 

It  is  manifest  that  these  considerations  in  reference  to  a  contract, 
express  or  implied,  do  not  apply  to  dangers  resulting  from  conditions 
which  arise  or  defects  which  come  into  existence  after  the  making 
of  the  contract,  which  cannot  be  deemed  to  have  been  contemplated 
when  the  contract  was  made. 

The  precise  question  involved  in  this  case  does  not  seem  to  have 
been  settled  in  England,  although  there  has  been  much  discussion 
and  a  variety  of  opinion  in  regard  to  questions  closely  allied  to  it. 
It  is  held  by  all  the  judges  there  that  the  maxim.  Volenti  non  fit  in- 
juria, applies  as  well  to  actions  under  the  statute  as  to  those  at  com- 
mon law;  but  none  of  the  cases  which  have  come  to  our  attention 
have  determined  the  effect  of  a  contract  to  work  in  a  place  obviously 
dangerous  by  reason  of  inferior  machinery  or  appointments  when 
the  contract  was  made.  Sometimes  it  seems  to  have  been  assumed 
that  the  defence  of  an  implied  contract  to  assume  the  ordinary  risks 
of  a  business  is  taken  away  by  the  statute,  without  recognizing  any 
distinction  between  fin  implied  contract  founded  on  the  known  condi- 
tion of  the  ways,  works,  and  machinery  in  reference  to  which  the 
contract  is  made,  and  a  contract  in  reference  to  dangers  from  the 
nogligence  of  follow-servants,  or  the  subsequent  neglect  of  the  master. 
In  Walsh  v.  Wliiteley,  21  Q.  B.  D.  371,  the  decision  of  the  Lords 
Justi(.'OS  Lindlcy  and  Lopes,  a  majority  of  the  Court  of  Appeal,  tends 
to  sup})ort  the  view  we  have  taken,  although  the  judgment  is  on  dif- 
ferent grounds.     So  also  docs  the  jndgnicnt  in  Thomas  v.  Quarter- 


CHAP.    III.]  NEGLIGENCE.  191 

maine,  18  Q.  B.  D.  G85,  which  has  been  often  considered  and  ex- 
plained, but  never  overruled.  In  Smith  v.  Baker,  [1891]  A.  C.  325, 
elaborate  opinions  were  given  in  the  House  of  Lords,  showing  con- 
siderable difference  of  view  on  some  of  the  questions  we  have  been 
considering;  but  the  effect  of  a  contract  to  work  under  exposure  to 
peculiar  dangers  from  machinery,  obvious  when  the  contract  was 
made,  was  not  much  considered. 

In  the  present  case,  the  plaintiff  when  he  made  his  contract  Imew 
and  fuUy  appreciated  the  dangers  to  which  he  was  about  to  expose 
himself;  for  they  were  obvious,  and  he  had  been  accustomed  to  work 
on  the  runs,  from  time  to  time,  for  fifteen  years,  during  which  period 
they  had  remained  unchanged.  We  are  of  opinion  that  he  impliedly 
contracted  to  work  on  the  runs  as  they  were,  and  that,  if  they  can 
be  considered  defective,  the  defect  is  not  within  the  description  in  the 
St.  of  1887,  c.  270,  §  1,  inasmuch  as  the  defendant  owed  him  no  duty 
in  regard  to  it,  and  he  cannot  say  that  its  continued  existence  was 
owing  to  the  negligence  of  his  employer. 

Judgment  on  the  verdict. 


POWEES  V.  NEW  YOEK,  LAKE  ERIE  &  WESTERN  RAIL- 
ROAD COMPANY. 

Court  of  Appeals  of  New  York,  March,  1885.    98  N.  Y.  274. 

Action  for  damages  by  reason  of  alleged  negligence  causing  the 
death  of  the  husband  of  the  plaintiff  administratrix.  The  plaintiffs, 
of  whom  there  were  several  suing  upon  letters  of  administration, 
were  nonsuited  at  the  trial  on  the  ground  that  no  case  was  made,  and 
the  order  of  nonsuit  was  reversed  by  the  General  Term,  and  a  new 
trial  granted.  Appeal  therefrom.  The  facts  appear  in  the  opinion 
of  the  court. 

Miller,  J.  The  intestate  was  killed  by  being  thrown  from  a  hand- 
car which  he  and  other  employees  were  propelling  upon  the  defend- 
ant's road.  The  complaint  alleged  that  the  handcar  was  unsafe  and 
improperly  constructed,  and  the  proof  showed  that  two  or  three 
weeks  before  the  accident  one  of  the  handles  to  the  walking-beam  was 
broken  and  that  defendant's  employees  continued  to  use  the  car  with 
the  handle  of  a  pick  or  an  iron  crowbar  in  the  place  of  the  broken 
handle,  it  being  inserted  in  the  socket  by  some  of  them  without  any 
direction  from  the  section  boss.  The  crowbar  was  about  five  and  one- 
half  feet  in  length,  and  when  used  as  a  handle  one  end  projected  four 
feet  and  the  other  one  and  one-half  feet  from  the  socket  of  the  lever. 
On  the  day  of  the  accident  some  of  the  workmen  had  inserted  the 
crowbar  in  the  place  of  the  handle  that  was  gone,  and  observing  a 
train  approaching  from  behind  on  the  same  track,  instead  of  ren\oving 


192  POWERS    V.    N.    Y.,    L.    E.    AND    W.    R.    CO.  [CIIAP.    III. 

the  handcar  to  the  other  track,  as  was  usually  done,  they  started  to 
run  it  to  a  distant  switch  and  thus  escape  the  train.  They  worked 
the  car  with  all  the  force  they  could,  using  five  men  on  the  crowbar 
instead  of  three,  the  usual  number.  Three  of  them,  including  the 
intestate,  were  on  the  long  arm,  one  on  the  short  arm,  and  one  in  the 
centre.  The  working  of  the  crowbar  by  the  men  in  the  manner  in 
which  it  was  done  evidently  wrenched  the  lever  or  beam  by  which  the 
car  was  operated,  so  that  it  broke,  throwing  the  intestate  under  the 
car  and  killing  him.  Prior  to  the  accident  the  intestate  had  full 
knowledge  of  the  defect  in  the  handcar,  and  voluntarily  continued  in 
the  employ  of  defendant  without  complaining  of  or  objecting  to  it. 
By  riding  on  the  car  and  aiding,  by  the  use  of  the  crowbar,  in  pro- 
pelling it  along  on  the  track,  he  assumed  all  risks  of  injury  resulting 
from  the  use  of  the  crowbar  or  from  the  negligence  of  his  fellow- 
servants,  without  any  regard  whatever  to  the  question  whether  the 
defendant  knew  of  the  defect  or  ought  to  have  had  knowledge  of  the 
same.  2  Thomp.  on  Neg.  1008  et  seq. ;  Gibson  v.  Erie  Eailway  Co. 
63  N.  Y.  453;   De  Forest  v.  Jewett,  88  N.  Y.  264. 

The  deceased  was  an  employee  on  the  road,  and  no  doubt  was  pos- 
sessed of  the  ordinary  judgment  and  sense  of  those  who  occupied  a 
similar  position.  He  had  sufficient  knowledge  to  understand  the 
ordinary  rules  which  are  applicable  to  the  use  of  a  car  which  was 
partially  disabled,  as  was  the  case  here.  He  must  have  known  that 
the  use  of  the  crowbar  required  the  usual  care,  and  would  not  be  as 
safe  and  secure  as  if  a  proper  handle  had  been  in  use.  He  must  also 
have  known  that  the  application  of  extraordinary  force,  under  the 
circumstances,  might  perhaps  cause  the  accident  by  wrenching  the 
walking-beam,  as  was  done  by  such  a  use  of  the  crowbar  in  this  case. 
It  did  not  require  a  special  knowledge  or  skill  to  determine  that  an 
unusual  application  of  force  might  result  either  in  the  breaking  of 
the  handle  or  the  walking-beam.  Working  on  the  car  as  he  did,  with 
ample  knowledge  in  regard  to  its  operation,  and  fully  aware  of  its 
condition,  there  would  seem  to  be  no  ground  for  claiming  that  there 
was  any  question  of  fact  for  the  consideration  of  the  jury  as  to  the 
intestate's  knowledge  of  the  risk  he  incurred  in  using  the  car  and 
improperly  using  the  crowbar  in  propelling  the  same. 

There  is  a  class  of  cases  in  the  books  in  which  it  is  held  that  the 
question  arising  as  to  the  knowledge  of  an  injured  party  in  regard 
to  defects  in  machinery  or  materials  may  be  submitted  to  the  jur}^, 
but  these  cases  are  all  clearly  distinguishable  from  the  one  at  bar, 
where  it  is  plainly  apparent  that  knowledge  must  have  existed  as  to 
the  character  of  the  implements  or  machinery  employed  and  of  the 
risks  incident  thereto,  and  that  the  injured  party  acted  with  an  entire 
appreciation  of  the  actual  condition  of  the  car  on  which  he  was  rid- 
ing, fully  rfialized  the  state  in  which  it  was,  and  did  not  deem  it  essen- 
tial to  make  any  complaint,  or  give  any  notice  to  the  defendant  that 


CHAP.   III.]  NEGLIGENCE.  193 

he  considered  it  unsafe  or  unfit  for  use.  In  the  case  of  East  Tennes- 
see, &c.,  R.  Co.  V.  Smith,  9  Lea  (Tenn.),  G85,  the  accident  occurred 
by  reason  of  the  breaking  of  a  handle  on  a  handcar  under  circum- 
stances similar  to  those  presented  in  the  case  at  bar,  and  the  question 
discussed  was  as  to  the  defect  in  one  of  the  wooden  handles  of  the 
lever  which  was  claimed  to  be  too  small  for  the  purpose,  and  it  was 
held  by  the  court  that  the  determination  of  such  a  matter  required 
no  special  knowledge  or  scientific  skill,  and  if  with  such  knowledge 
the  plaintiff  elected  to  continue  in  the  service  he  should  be  regarded 
as  voluntarily  electing  himself  to  take  the  risk. 

This  rule  may  be  invoked  with  far  greater  reason  in  the  case  con- 
sidered, where  the  simple  question  was,  whether  the  car  could  be 
properly  used  in  the  manner  it  was  after  substituting  the  crowbar 
in  the  place  of  the  handle. 

We  are  referred  to  the  remarks  in  the  opinion  in  the  case  of  Laning 
V.  New  York  Cent.  R.  Co.  49  N.  Y.  521,  to  the  effect  that  if  the 
servant  remains  in  the  service  after  a  defect  arises  and  complains 
of  the  same,  it  is  for  the  jury  to  say  whether  or  not  he  voluntarily 
assumed  the  risk  of  defective  machinery  whereof  he  has  full  and 
equal  knowledge.  The  alleged  defect  in  that  case  was  the  employ- 
ment of  unfit  men,  of  which  the  person  had  knowledge  and  made 
complaint;  and  while  the  rule  stated  may  well  apply  to  such  a  case, 
it  cannot  be  regarded  as  pertinent  to  one  Avhcre  it  is  clear  and  unmis- 
takable that  the  employee  not  only  had  knowledge  but  a  full  apprecia- 
tion of  the  character  of  the  instrumentalities  with  which  he  was  work- 
ing, and  made  no  complaint. 

It  is  true  that  regard  must  be  had  to  the  limited  knowledge  of  the 
employee  as  to  the  machinery  and  structure  on  which  he  is  employed, 
and  to  his  capacity  and  intelligence,  and  that  the  servant  has  a  right 
to  rely  upon  the  master  to  protect  him  from  danger  and  injury,  and 
in  selecting  the  agent  from  which  it  may  arise;  Connolly  v.  Poillon, 
41  Barb.  360;  but  this  rule  should  not  be  invoked  where  it  is  entirely 
apparent  that  the  servant  has  an  intelligent  and  clear  comprehension 
of  the  nature  of  the  risks  to  which  he  is  subjected.  Some  other  cases 
are  cited  by  the  respondents'  counsel,  but  they  are  all  distinguishable 
from  the  case  at  bar,  and  none  of  them  hold  that  where  the  evidence 
clearly  shows  that  the  person  injured  had  full  knowledge  of  the 
defect  and  intelligently  and  completely  appreciated  its  true  character, 
there  was  any  question  of  fact  for  the  consideration  of  the  jury. 

It  is  apparent,  we  think,  under  the  facts  presented  that  the  in- 
testate, with  full  knowledge  of  the  defects  in  the  car,  assumed  the 
responsibility  of  working  on  the  same  and  the  risks  arising  therefrom, 
and  that  no  liability  was  incurred  by  the  defendant  by  reason  of  the 
accident  which  caused  his  death.  There  is  far  stronger  reason  here 
for  relieving  the  defendant  from  liability,  where  the  defect  did  not 
exist  originally,  and  when  the  servant  upon  discovering  it  failed  to 


194  ANDRECSIK   V.    N,    J,    TUBE   CO.  [CHAP.    III. 

perform  his  duty  in  notifying  the  master,  than  under  ordinary  cir- 
cumstances. By  his  neglect  of  duty  in  this  respect  he  was  chargeable 
with  contributory  negligence,  which  prevents  his  recovery  of  damages 
on  account  of  being  injured  by  reason  of  the  use  of  the  defective 
handcar.^ 

We  are  also  of  the  opinion  that  the  action  cannot  be  maintained 
for  the  additional  reason  that  the  deceased  was  chargeable  with  con- 
tributory negligence  in  the  use  of  the  handcar  by  himself  and  his 
fellow-servants  in  the  manner  in  which  it  was  propelled  at  the  time 
of  the  accident.  It  was  clearly  negligence  to  seek  to  avoid  the  train 
in  the  manner  they  did.  The  deceased  participated  with  his  fellow- 
servants  in  this  act  and  was  responsible  for  the  consequences  which 
followed. 

There  was  no  question  of  fact  for  the  jury  upon  the  trial ;  and  for 
the  reasons  stated  the  motion  for  a  nonsuit  was  properly  granted, 
and  the  General  Term  erred  in  reversing  the  judgment.  The  order  of 
the  General  Term  should  be  reversed  and  judgment  entered  on  the 
order  nonsuiting  plaintiff  at  circuit. 

Order  reversed. 


ANDRECSIK  v.  NEW  JERSEY  TUBE  CO. 

Court  of  Errors  and  Appeals  of  New  Jersey,  November,  1905.    73  N.  J.  L.  664. 

The  case  is  stated  in  the  opinion. 

Dill,  J.  This  action  is  brought  to  recover  damages  for  personal 
injuries  sustained  by  the  plaintiff,  while  in  the  defendant's  employ, 
through  the  defendant's  alleged  negligence. 

The  plaintiff,  a  man  twenty-eight  years  of  age,  had  been  employed 
in  the  defendant's  mill  for  about  two  years  prior  to  the  accident  — 
eighteen  months  as  helper,  about  two  months  as  an  assistant  upon  the 
machine,  and  about  three  months  prior  to  the  injury  in  charge  of 
the  machine  at  which  he  was  injured.  When  placed  in  charge  of  the 
machine  he  was  instructed  as  to  its  workings. 

Prior  to  ten  o'clock,  in  the  morning  of  November  11th,  1903,  the 
day  upon  which  he  was  injured,  the  plaintiff  discovered  that  the 
machine  upon  which  he  was  working  was  out  of  order.  He  testified 
that  this  was  very  easy  to  see. 

About  ten  o'clock  he  complained  of  this  to  the  superintendent, 
who  replied :  "  You  go  right  ahead  with  the  work ;  we  are  overloaded 
with  work,  and  noon  hour  I  will  fix  this  for  you." 

What  a  third  party  understood  the  superintendent  to  say  is  not 
nifitcrial  to  tliis  flccision.     The  foregoing  is  what  the  plaintiff  asserts 

'  'I'lils  nitpojirH  tf)  be  but  a  rpmark  by  the  way,  and  perhaps  was  not  as  fully  con- 
sidered as  If  the  caHe  had  turned  ui)un  it. 


CHAP.    III.]  NEGLIGENCE.  195 

the  superintendent  promised  him,  and  was  the  agreement  to  repair 
upon  which  the  plaintiff  relied  in  resuming  work. 

The  plaintiff  continued  to  work  on  the  machine  until  the  noon 
hour,  quitting  at  twelve  o'clock,  without  injury.  He  ate  his  lunch 
near  the  machine  —  in  sight  of  it  —  and  was  in  and  about  the  place 
during  the  noon  hour.  During  the  noon  hour,  from  twelve  to  one 
o'clock,  the  machine  was  not  repaired,  and  this  was  apparent  to  the 
plaintiff.  The  defective  condition  of  the  machine  when  the  plaintiff 
resumed  work  was  obvious. 

At  one  o'clock  the  plaintiff  resumed  work  and  continued  until  three 
o'clock,  when  he  was  injured  by  the  defective  machine. 

No  evidence  was  offered  in  behalf  of  the  defence. 

The  Chief  Justice,  who  tried  the  case  below,  nonsuited  the  plain- 
tiff, and,  holding  the  promise  to  be  definite  as  to  the  time  of  per- 
formance, laid  down  this  rule :  "  Where  the  master  says  that  he  will 
repair  the  machine,  or  have  it  repaired,  at  a  specific  time,  the  em- 
ployee is  entitled  to  continue  to  operate  the  defective  machine  at  the 
master's  risk  until  that  time  has  elapsed;  but  if,  after  that  time,  the 
master  has  not  made  good  his  word,  and  made  the  repairs,  and  the 
employee  still  continues  to  operate  the  machine,  the  risk  shifts,  and 
the  employee  assumes  it,  relieving  the  master." 

The  plaintiff  in  error  seeks  to  review  this  ruling,  and  for  that 
purpose  this  writ  of  error  is  prosecuted. 

We  are  of  the  opinion  that  the  rule  laid  down  by  the  Chief  Justice 
was  correct,  and  that  the  nonsuit  was  proper. 

The  questions  of  law  decisive  of  the  case  at  bar  have  not  been  here- 
tofore passed  upon  by  this  court. 

The  plaintiff  was  engaged  in  operating  a  machine  which  was  obvi- 
ously defective.  He  was  aware  of  the  danger  incident  to  such  defect- 
ive condition. 

The  servant,  by  accepting  employment  or  voluntarily  continuing 
therein  with  the  knowledge  or  means  of  knowing  the  dangers  involved, 
is  deemed  to  have  assumed  the  risk. 

This  rule  the  plaintiff  seeks  to  avoid  by  proof  that  he  notified  the 
master  of  the  defect,  and  that  the  master,  for  the  purpose  of  inducing 
the  plaintiff  to  continue  in  his  employment,  promised  to  remedy  it. 

The  question  presented  is  whether  the  servant  was  chargeable,  in 
spite  of  the  promise,  with  the  assumption  of  the  risk  in  question  and 
as  a  conclusion  of  law.  The  decision  must,  in  the  first  place,  depend 
upon  the  character  of  the  promise  to  repair.  Was  it  express  or  in- 
ferential as  to  time  of  fulfillment?  If  inferential,  there  may  have 
been  a  question  for  the  jury.  If  express,  there  was  no  question  for 
the  jury  on  that  point. 

The  words  "  noon  hour  "  are  definite  terms :  "  Noon  —  mid-day 
and  in  exact  use  twelve  o'clock."  —  Cent.  Diet.  "  Hour  —  a  particu- 
lar time;  a  fixed  or  appointed  time."  —  Id. 


196  ANDRECSIK    V.    N.    J,    TUBE    CO.  [CHAP.   HI. 

"  Noon "  designated  the  beginning  of  tlifi  period,  i.  e.,  twelve 
o'clock ;  "  hour,"  the  duration  of  the  period. 

It  is  clearly  shown  by  the  evidence  that  the  term  "  noon  hour  "  was 
in  common  use,  and  was  well  understood  by  both  parties  to  mean  from 
twelve  o'clock  noon  to  one  o'clock  in  the  afternoon. 

The  plaintiff  says  he  quit  work  at  twelve  o'clock  and  went  to  work 
at  one  o'clock. 

Again,  he  was  asked  if  he  worked  "  before  the  noon  hour  "  on  the 
day  on  which  he  was  injured.  "  Yes,  sir,"  he  answered,  "  I  started  at 
seven  and  worked  until  twelve." 

The  words  "  noon  hour  "  are  used  by  the  plaintiff  and  his  witnesses, 
and  always  as  meaning  from  twelve  o'clock  noon  to  one  o'clock  in 
the  afternoon. 

In  King-Ryder  Lumber  Co.  v.  Cochran,  71  Ark.  55,  the  plaintiff, 
who  was  running  an  edging  machine  in  a  lumber  mill,  discovered  a 
defect  in  the  machine  in  the  morning  and  informed  the  foreman,  who 
told  him  "  to  go  and  run  it  until  noon,  when  he  would  have  it  re- 
paired." 

The  court  treated  this  as  a  promise  to  repair  at  a  definite  time, 
and  it  is  cited  by  subsequent  authorities  as  a  definite  promise.  Other- 
wise the  case  is  not  in  point. 

In  the  case  before  us,  we  are  of  the  opinion  that  the  promise  to 
repair  was  not  general,  but  specific,  as  to  time  of  performance. 

The  time  when  the  promise  to  repair  should  have  been  fulfilled  is 
too  clear  for  reasonable  controversy.  There  was  no  need  of  submit- 
ting that  question  to  the  jury,  or  any  other  question  bearing  upon  the 
subject. 

In  discussing  the  further  questions  involved  it  should  be  noted 
that  in  this  case : 

First.  The  promise  to  repair,  made  after  the  work  was  begun,  was 
definite  as  to  the  time  of  performance. 

Second.  The  accident  did  not  occur  between  the  time  of  the  ma- 
king of  the  promise  and  before  the  end  of  the  period  fixed  for  its 
fulfillment. 

Third.  The  injury  was  subsequent  to  (a)  the  complaint,  (b)  the 
promise,  (c)  the  agreed  time  of  performance,  and  (d)  the  master's 
default. 

In  resuming  work  under  these  circumstances,  was  the  risk  the 
servant's  or  the  master's? 

The  two  recent  cases  in  the  Supreme  Court  (Dowd  v.  Erie  Railroad 
Co.,  41  Vroom  451,  and  Dunkerley  v.  Wcbendorfer  Machine  Co.  42 
Id.  GO),  have  not  heretofore  boon  before  this  court. 

In  both  the  master's  agreement  was  indefinite  as  to  the  time  when 
thf  repair  was  to  be  made. 

I  ri  tbo  Dowd  case  the  promise  was  to  have  it  attended  to  "  as  soon 
as  he  could." 


CHAP.    III.]  NEGLIGENCE.  197 

In  the  Dunkerley  case  the  agreement  was  to  remedy  the  fault  "  at 
the  first  opportunity." 

In  the  Dowd  case,  Mr.  Justice  Swayze  states  the  law  to  be  as  fol- 
lows : 

"  The  rule  that  tlie  servant  assumes  not  only  the  ordinary  risks  inci- 
dent to  the  employment,  but  also  such  special  features  of  danger  as 
are  plain  and  obvious,  and  also  such  as  he  would  discover  by  the 
exercise  of  ordinary  care  for  his  personal  safety,  is  well  established 
in  this  state  (citing  cases). 

"  The  servant  assumes,  as  well,  those  risks  which  arise  or  become 
known  to  him  during  the  service  as  those  in  contemplation  at  the 
original  hiring.  Dillenberger  v.  Weingartner,  35  Vroom  293  (Court 
of  Errors  and  Appeals,  1899). 

"  To  the  rule  that  the  servant  assumes  the  obvious  risks  of  the  em- 
ployment, an  exception  is  made  where  the  master  has  promised  to 
amend  the  defect  or  to  make  the  place  safe,  and  the  servant  continues 
the  work  in  reliance  upon  the  promise.  .  .  . 

"  The  master  is  exempted  from  liability  in  the  case  of  obvious  risks 
for  the  reason  that  the  servant,  by  continuing  in  the  employment 
with  knowledge  of  the  danger,  evinces  a  willingness  to  incur  the 
risk,  and  upon  the  principle  volenti  non  fit  injuria.  But  when  the 
servant  shows  that  he  relied  upon  a  promise  made  to  him  to  remedy 
the  defect,  he  negatives  the  inference  of  willingness  to  incur  the  risk. 
In  such  a  case  this  inference  can  only  be  drawn  when  the  servant 
continues  the  work,  although  the  promise  is  not  performed  within  a 
reasonable  time."    41  Vroom  451  (at  p.  455). 

We  are  referred  to  the  decision  of  the  Supreme  Court  of  the  State 
of  New  York,  in  Eice  v.  Eureka  Paper  Co.,  70  App.  Div.  336,  as 
the  leading  authority  for  the  insistment  that  the  Dowd  case  should 
not  be  approved  by  this  court. 

The  answer  to  this  argument  and  the  citation  in  its  support  is 
twofold. 

In  the  first  place,  the  decision  of  the  New  York  Supreme  Court 
in  the  Eice  case  is  not  in  conflict  with  the  Dowd  case. 

In  the  Dowd  case,  the  promise  to  repair  was  indefinite  as  to  time 
of  performance  by  the  master.  The  court  construed  it  to  be  a  general 
promise.  In  the  Eice  case,  the  New  York  Supreme  Court  construed 
the  promise  to  repair  as  specific,  and  based  its  conclusion  upon  that 
construction  of  the  promise.  70  App.  Div.  (at  pp.  342  et  seq.)  It 
held  that,  in  a  case  where  the  promise  was  to  repair  at  a  definite  time, 
the  risk  in  the  interim  between  the  time  of  the  making  of  the  promise 
and  the  time  set  for  its  performance  was  that  of  the  servant,  and 
not  of  the  master.     Id.  354. 

In  the  second  place,  the  Court  of  Appeals  of  New  York  reversed 
the  Supreme  Court.  Eice  v.  Eureka  Paper  Co.,  174  N.  Y.  385; 
reversing  70  App.  Div.  336. 


198  ANDRECSIK   V.    N,    J.    TUBE    CO.  [CIIAP.    III. 

The  Court  of  Appeals  overruled  the  holding  below  as  to  the  char- 
acter of  the  promise  to  repair;  declared  that  it  was  not  specific  as  to 
time  of  performance  (Kice  v.  p]urcka  Paper  Co.,  174  N.  Y.  385)  (at 
p.  397) ;  construed  it  as  a  promise  to  repair  generally,  indefinite  as 
to  the  time  of  its  performance  (Id.  398),  and,  proceeding  upon  that 
construction,  established  the  law  of  that  state  in  harmony  with  the 
doctrine  of  the  Dowd  case. 

The  doctrine  of  the  Dowd  case  is  supported  by  the  authorities  cited 
by  Mr.  Justice  Swayze,  by  the  decision  of  the  Court  of  Appeals  of 
New  York  in  the  Eice  case,  by  the  eminent  text-writers  and  the  lead- 
ing cases  ably  marshalled  in  the  opinion  therein,  and,  in  addition,  by 
the  following  authorities:  Eay  v.  Diamond  State  Steel  Co.,  2  Penne. 
(Del.)  525;  Boyd  v.  Blumenthal,  3  Id.  5G4;  Belair  v.  Chicago,  &c., 
Eailroad  Co.,  43  Iowa  662 ;  Buchner  v.  Creamery  Package  Manu- 
facturing Co.,  124  Id.  445;  Foster  v.  Chicago,  &c.,  Eailroad  Co.,  127 
Id.  84;  Brown  v.  Levy,  108  Ky.  163;  Taylor  v.  Nevada,  &c.,  Eailroad 
Co.,  26  Nev.  415;  Pleasants  v.  Ealeigh,  &c.,  Eailroad  Co.,  95  N.  C. 
195;  Barney  Dumping  Boat  Co.  v.  Clark,  112  Fed.  (C.  C.  A.)  921; 
1  Labatt's  Master  and  Servant,  1209,  s.  427b. 

The  rule  of  the  Dowd  case  is  so  generally  recognized  as  a  part  of 
the  jurisprudence  of  this  country  and  is  so  strongly  supported  by 
reason  and  justice  as  to  justify  its  adoption.  Vve  accordingly  approve 
the  decision  of  the  Supreme  Court  of  this  state  in  Dowd  v.  Erie 
Eailroad  Co.,  41  Vroom  451. 

The  approval  of  Dunkerley  v.  Webendorfer  Machine  Co.,  42  Vroom 
60,  follows,  as  a  matter  of  course. 

Thus  far  we  have  dealt  with  those  cases  where  the  master's  promise 
to  repair  was  general,  and  not  specific,  as  to  time  of  performance. 

We  come,  now,  to  consider  the  application  of  the  rule  to  those  cases 
where,  as  in  this  case,  the  time  of  performance  is  definitely  fixed  by 
the  agreement  of  the  parties.  The  authorities  where  the  promise  has 
been  of  this  character  are  comparatively  few. 

Two  questions  arise  in  a  case  where  the  promise  to  perform  is 
ilefinite: 

First.  Is  the  ad  interim  risk  lietwcen  the  making  of  the  promise 
and  the  termination  of  the  period  fixed  tlierein  for  its  performance 
the  master's  or  servant's? 

It  has  been  held  by  the  authorities  of  repute  that  during  the  interim 
the  servant  assumes  the  risk,  on  the  ground  that  before  the  time 
definitely  agreed  upon  for  the  making  of  the  repairs  he  can  have  had 
no  expectation  that  such  repairs  would  meanwhile  be  made,  and 
therefore  cannot,  in  the  interim,  have  continued  his  service  becaus.-^ 
of  such  expectation.  Standard  Oil  Co.  v.  Helmick,  148  Ind.  457,  and 
Eice  V.  Eureka  Paper  Co.,  70  App.  Div.  336  (New  York  Supreme 
Court),  are  g(!nera]ly  cited  in  support  of  this  theory. 

These  decisions  are  dependent  upon  facts  and  supported  by  prin- 


CHAP.    III.]  NEGLIGENCE.  199 

ciples  not  involved  here.  Their  conclusions  are  reached  by  divergent 
and  not  harmonious  lines  of  reasoning.  The  Supreme  Court  of 
Indiana  subsequently,  in  the  Potter  Case,  post,  disavowed  this  doc- 
trine. The  Eice  case  was  reversed  by  the  Court  of  Appeals  of  New 
York,  although  upon  another  point. 

We  do  not  agree  with  the  rule  in  support  of  which  these  cases  are 
cited  and  decline  to  adopt  it. 

It  has  also  been  held,  and  with  better  reason,  that,  as  in  the  case 
of  a  general  promise,  carrying  with  it  an  implication  of  performance 
within  a  reasonable  time,  so  also  in  the  case  of  a  promise  to  remedy 
a  defect  at  a  definite  and  agreed  time,  the  master  eo  instante  assumes 
the  risk  from  the  time  of  the  making  of  the  promise  up  to  and  in- 
cluding the  expiration  of  the  time  specified  for  its  fulfillment.  Louis- 
ville Hotel  Co.  V.  Kaltenbrum,  80  S.  W.  Rep.  1163;  upon  application 
for  rehearing,  83  Id.  378;  King-Ryder  Lumber  Co.  v.  Cochran,  71 
Ark.  55 ;  Anderson  v.  Seropian,  147  Cal.  201 ;  McFarlan  Carriage  Co. 
V.  Potter,  153  Ind.  107  (at  p.  114) ;  overruling  on  this  point  (at  p. 
116)  Standard  Oil  Co.  v.  Helmick,  supra. 

The  rule  that  a  promise  to  repair  made  by  the  master,  acted  upon 
by  the  servant,  creates  an  assumption  of  risk  by  the  master,  beginning 
instanter  upon  the  making  of  the  promise  and  continuing  thereafter 
to  the  end  of  the  period  named  for  the  repair,  is  supported  by  sound 
reason,  by  the  weight  of  authority,  and  is  in  accord  with  the  reasoning 
of  the  Dowd  case. 

Second.  At  whose  risk  does  the  servant  continue  his  work  after 
the  lapse  of  the  time  specified  for  the  making  of  the  repair  and  after 
the  master  has  obviously  defaulted  in  the  performance  of  such  prom- 
ise? 

Upon  this  point  we  are  referred  to  the  following  cases :  Louisville 
Hotel  Co.  V.  Kaltenbrum,  80  S.  W.  Rep.  1163  (Court  of  Appeals  of 
Kentucky  1904)  ;  Eureka  Company  v.  Bass,  81  Ala.  200  (1886) ; 
Trotter  v.  Chattanooga  Furniture  Co.,  101  Tenn.  257  (1898). 

The  facts  in  the  Louisville  hotel  case  differ  from  those  in  the  case 
at  bar,  since  the  injury  there  occurred  between  the  making  of  the 
promise  and  the  time  set  for  its  performance.  That  case  does  not 
decide  that  the  master's  assumption  of  risk  terminates  with  the  time 
set  for  the  performance  of  the  promise,  which  is  the  question  before 
us.  The  case  goes  no  further  than  to  hold  that  upon  the  making  of 
the  promise  the  master  instanter  assumes  the  risk  and  is  responsible 
for  an  injury  occurring  between  the  time  of  the  making  of  the  prom- 
ise and  the  time  appointed  for  its  fulfillment. 

In  the  Bass  case,  the  complaint  of  the  servant  was  of  a  defective 
fuse,  and  the  master  promised  "to  get  other  fuse,"  and  told  him  to 
"  do  the  best  he  could  with  what  he  had."  The  court  treated  this  as 
a  general  promise  involving  the  question  of  a  reasonable  time,  but  in 
arriving  at  its  conclusion  it  used  the  following  language  pertinent  to 


200  ANDRECSIK   V.    N.    J.    TUBE    CO.  [CHAP.    III. 

the  question  before  us :  "  The  injury,  in  other  words,  must  have  oc- 
curred within  the  time  at  which  the  defects  were  promised  to  be 
removed.  If  the  employee  continues  to  expose  himself  to  the  danger 
by  remaining  in  the  service  longer  than  this,  he  does  so  in  face  of 
the  fact  that  the  promise  of  the  employer  is  violated,  and  that  he 
has  no  reasonable  expectations  of  its  fulfillment.  He  can  no  longer, 
therefore,  rely  upon  the  promise,  and  must  know  that  his  continuance 
in  service  under  such  circumstances  is  equally  as  hazardous  and  hope- 
less of  remedy  as  if  no  assurance  or  promise  had  ever  been  made.  A 
promise  already  broken  can  afford  no  reasonable  guarantee  of  the 
fulfillment  of  any  expectation  based  on  its  disappointed  assurances." 

In  the  recent  ease  of  Gunning  System  v.  Lapointe,  213  111.  274 
(1904),  there  is  also  a  dictum  —  dictum  because  the  promise  in  the 
case  was  a  general  one  —  that  "  if  the  promise  is  to  repair  by  a  fixed 
time,  then,  after  the  expiration  of  the  time  fixed,  the  servant  assumes 
the  risk  from  the  defects  complained  of." 

Trotter  v.  Chattanooga  Furniture  Company  is  the  only  one  of  the 
three  cases  cited  which  is  in  point.  In  that  case  the  promise  was  defi- 
nite to  repair  "  in  the  morning."  The  promise  was  not  kept,  but  the 
servant  continued  his  work,  and  the  injury  occurred  ten  days  after 
the  time  set  for  the  performance  of  the  promise. 

The  court  held  that  the  servant  had  reassumed  the  risk,  citing  in 
support  of  its  decision  the  Bass  case,  relying  upon  the  language  of 
that  case  already  quoted. 

In  the  Trotter  case  the  court,  affirming  the  judgment  below  non- 
suiting the  plaintiff,  said :  "  We  do  not  think  it  would  have  been 
proper,  in  tliis  case,  to  have  submitted  to  the  jury  the  question  as  to 
what  was  reasonable  time.    The  promise  fixed  the  time." 

A  well  reasoned  authority  in  point  is  the  decision  of  the  Supreme 
Court  of  Wisconsin  (1901),  in  Albrecht  v.  Chicago  &  Northwestern 
Eailway  Co.,  108  Wis.  530.  In  that  case  a  locomotive  fireman  was 
ordered,  about  five  o'clock  in  the  afternoon,  to  go  on  a  trip,  which 
was  subsequently  made  at  ten  o'clock  in  the  evening.  At  seven-fifteen 
in  the  evening  he  went  on  board  tbe  engine  and  performed  various 
duties.  At  eight  o'clock  in  the  evening  he  complained  to  the  engineer 
of  the  absence  of  a  shield  over  the  glass  indicating  the  oil-supply, 
stating  that  he  had  searched  for  the  shield  and  failed  to  find  it,  add- 
ing, "  You  must  get  a  shield  for  this  lubricator,"  to  which  the  engineer 
replied,  "  All  right,  I  will  get  one."  The  engineer  did  not  keep  his 
promise;.  The  fireman  was  in  and  about  the  cab  from  eight  o'clock 
to  ten  o'clock  in  the  evening,  and  then  went  on  the  trip  in  spite  of 
the  fact  that  the  engineer  had  not  kept  his  promise,  and  although  the 
fireman  saw  that  the  shield  was  not  in  its  place.  At  one  o'clock 
in  the  morning  the  glass  burst  and  he  was  injured  by  reason  of  the 
absence  of  the  shield. 

The  court  l)(;low  held  the  engineer's  undertaking  to  be  a  general 


CHAP.    III.]  NEGLIGENCE.  201 

promise,  and  left  it  to  the  jury  to  determine  the  question  of  reasonable 
time.  The  Supreme  Court,  reversing  the  holding  below,  construed  the 
promise  made  at  eight  o'clock  in  the  evening  to  be  a  promise  on  the 
part  of  the  engineer  to  furnish  the  shield  before  the  trip  was  made 
at  ten  o'clock  in  the  evening,  and  held  the  promise  to  be  definite  as 
to  time  of  performance,  and  that  there  was  no  question  to  be  sub- 
mitted to  the  jury,  saying : 

"  When  the  time  expired  for  the  engineer  to  redeem  his  promise, 
under  the  circumstances  indicated,  respondent  was  no  longer  protected 
thereby  in  his  right  to  hold  defendant  responsible  for  the  consequences 
of  the  danger.  .  .  . 

"  In  proceeding  thereafter  in  the  defendant's  service,  he  voluntarily 
assumed  the  risk  of  which  he  had  complained  as  a  part  of  his  con- 
tract of  employment,  and  is  remediless  for  what  followed." 

We  agree  with  ]\Ir.  Labatt,  in  his  recent  work  on  "  Master  and 
Servant,"  that  "  the  only  rational  view  seems  to  be  that  as  soon  as  the 
period  contemplated  for  the  removal  of  the  dangerous  conditions  ter- 
minated, the  servant's  position  is  precisely  what  it  would  have  been 
if  no  promise  had  been  given;  that  is  to  say,  he  reassumes  the  risk." 
1  Labatt  Mast.  &  Serv.  104,  s.  425. 

Upon  the  point  of  the  termination  of  the  master's  liability,  Mr. 
Justice  Swayze,  in  the  Dowd  case,  says :  "  The  failure  to  perform  the 
promise  (to  repair  "as  soon  as  he  could")  within  a  reasonable  time, 
indicates  that  it  will  not  be  performed,  and  the  continuance  in  the 
work  thereafter  justifies  the  inference  that  the  servant  did  not  rely 
upon  performance  of  the  promise,  but  was  willing  to  take  the  risk. 
He  is,  therefore,  in  such  a  case,  held  to  have  assumed  the  risk,  not- 
withstanding the  promise."    41  Vroom  (at  p.  456). 

This  proposition  relating  to  a  general  promise  is  supported  by  the 
following  authorities :  Eureka  Company  v.  Bass,  81  Ala.  200 ;  Illi- 
nois Steel  Co.  V.  Mann,  170  111.  200;  Gunning  System  v.  Lapointe, 
212  Id.  274;  Burns  v.  Windfall  Manufacturing  Co.,  146  Ind.  261; 
Breckenridge  Company  v.  Hicks,  94  Ky.  362;  Stalzer  v.  Packing 
Company,  84  Mo.  App.  565;  Gulf,  &c.,  Kailroad  Co.  v.  Brentford,  79 
Tex.  619;  Stephenson  v.  Duncan,  73  Wis.  404;  Corcoran  v.  Milwaukee 
Gaslight  Co.,  81  Id.  191;  Ferriss  v.  Berlin  Machine  Works,  90  Id.  541. 

Similarly,  where  the  agreement  as  to  the  time  of  performance  is 
by  the  parties  clearly  defined,  the  failure  to  perform  the  promise 
within  the  agreed  time  indicates  that  it  will  not  be  performed,  and  a 
continuance  of  the  Avork  thereafter  justifies  the  inference  that  the  serv- 
ant no  longer  relied  upon  the  performance  of  the  promise,  but  was 
willing  to  take  the  risk.  In  such  case,  also,  the  servant  must  be  held, 
where  there  is  a  manifest  breach  of  the  agreement  to  repair,  to  have 
reassumed  the  risk  at  the  expiration  of  the  time  fixed  for  the  per- 
formance of  the  master's  promise. 

The  principle  applicable  to  both  classes  of  cases  is  that  when  tlie 


202  ANDRECSIK   V.   N.    J.   TUBE   CO.  [CHAP.    III. 

time  appointed  for  the  removal  of  the  conditions  giving  rise  to  the 
danger  expires,  whether  that  period  be  expressly  or  impliedly  fixed, 
the  servant's  relation  to  the  master  is  precisely  the  same  as  if  no  prom- 
ise had  been  made.  He  is  relegated  back  to  his  original  position 
and  reassumes  the  risk.  After  the  master  has  manifestly  defaulted 
in  his  promise  to  repair,  the  servant  resumes  work  with  no  existing 
contract  on  the  part  of  the  master  to  assume  the  risk,  and  therefore 
continues  at  his  (the  servant's)  risk. 

In  the  present  case,  where  the  promise  was  to  repair  the  defect  at 
a  specified  time,  and  where  the  master  had  manifestly  failed  to  make 
the  repair  within  the  time  specified,  the  servant,  in  resuming  work 
thereafter,  brought  himself  again  within  the  original  rule,  and  as- 
sumed not  only  such  special  features  of  danger  as  were  plain  and 
obvious,  but  such  as  he  would  discover  by  the  exercise  of  ordinary 
care  for  his  personal  safety. 

The  conclusions  which  we  have  reached  negative  the  proposition 
that  whenever  it  is  proved  that  a  promise  to  repair  was  made  and 
acted  upon  the  case  is  prima  facie  for  the  jury. 

The  master,  in  the  making  of  the  promise,  and  the  servant,  in  act- 
ing upon  it,  fix  their  mutual  relation. 

Where  the  promise  to  make  the  repair  is  indefinite  or  inferential 
as  to  the  time  of  the  performance,  there  may  arise  a  question  for  the 
jury  of  reasonable  time  —  on  the  part  of  the  master  for  performance, 
and  consequently  on  the  part  of  the  servant  for  continuing  to  incur 
the  risk  in  the  expectation  that  the  master  will  perform. 

Where,  however,  the  promise  is  express  as  to  time  of  performance, 
the  rule  is  otherwise. 

A  promise  made  by  the  master,  acted  upon  by  the  servant,  to  repair 
a  specified  defect  at  a  definite  time  thereafter,  creates  an  assumption 
of  the  risk  by  the  master.  This  assumption  of  risk  begins  forthwith 
upon  the  making  of  the  promise  and  continues  thereafter  and  through- 
out the  period  fixed  for  the  making  of  the  repair;  but  this  undertak- 
ing of  the  master  terminates  and  his  liability  thereunder  ceases  at 
the  end  of  that  period.  The  termination  of  the  master's  undertaking 
and  the  termination  of  the  period  fixed  for  repair  are  identical  in 
point  of  time. 

In  such  case  it  would  be  error  to  submit  to  the  jury  any  question 
relating  thereto  which  would  enable  the  jury  to  find,  in  conflict  with 
the  terms  of  the  contract,  that  the  responsibility  on  the  part  of  the 
master  still  existed  after  the  expiration  of  the  period  during  which 
the  master  had  agreed  to  undertake  it. 

As  a  rule,  whether  tlic  ])roinise  is  general  or  definite  is  a  question 
for  the  court. 

It  follows,  therefore,  both  on  principle  and  by  authoriiy,  tliat  the 
nonsuit  below  was  proper. 

The  judgment  of  the  Suprciiie  Court  is  affirmed. 


CHAP.    III.]  NEGLIGENCE.  203 

For  affirmance  —  The  Chancellor,  Garrison,  Fort,  Garrctson,  Hen- 
drickson,  Swayze,  Eeed,  Vredenburgh,  Vroom,  Green,  Gray,  Dill  — 12. 
For  reversal  —  Pitney,  Bogert  —  2. 


BEOCKETT    v.    FAIEHAVEN"    &    WESTVILLE    EAILEOAD 

COMPANY,  ET  AL. 
Supreme  Court  of  Connecticut,  December,  1900.     73  Conn.  428. 

Action  to  recover  damages  for  personal  injuries  sustained  in  a  col- 
lision between  the  trains  of  the  defendants,  alleged  to  have  been 
caused  by  the  defendants'  negligence.  The  collision  occurred  at  a 
grade-crossing.  The  plaintiff  jumped  or  was  hurled  from  the  car  of 
one  of  the  defendants,  on  which  she  was  a  passenger.  At  the  trial 
(on  the  question  of  damages)  the  defendants  contended,  inter  alia, 
that  judgment  could  not  be  rendered  on  the  plaintiif's  complaint  be- 
cause it  contained  "  no  allegation  of  due  ^are  "  on  the  part  of  the 
plaintiff.  The  plaintiff  had  judgment  for  $500,  and  one  of  the  de- 
fendants appealed,  assigning  the  refusal  of  the  lower  court  to  rule 
as  requested,  as  error.^ 

Hamersley,  J.  [After  discussing  other  grounds  of  error,  the  court 
proceeded:] 

There  is  no  error  in  the  rulings  of  the  court  upon  the  defendant's 
claims  made  upon  the  trial.  The  claim  that  judgment  could  not  be 
rendered  for  substantial  damages  because  the  complaint  contains  no 
allegation  that  the  plaintiff  was  in  the  exercise  of  due  care,  is  without 
foundation.  The  allegation  that  the  injury  complained  of  was  caused 
by  the  negligence  of  the  defendant,  is  not  established  if  in  fact  the 
injury  was  also  caused  by  the  negligence  of  the  plaintiff;  and  in  this 
State  the  burden  of  proof  is  on  the  plaintiff  to  show  that  his  negli- 
gence was  not  a  contributory  cause  of  the  injury.  By  the  general  law 
of  negligence,  every  person  is  bound  to  exercise  ordinary  care  in  his 
acts  and  omissions  that  may  endanger  others ;  if  he  neglects  to  do  this 
he  violates  a  legal  duty  which'  he  owes  to  each  person  who  may  be 
exposed  to  the  danger,  and  the  injured  party  has  a  right  of  action 
against  such  wrongdoer.  But  in  such  case  the  injured  party  is  sub- 
ject to  the  same  law ;  he  owes  the  same  duty,  and  is  likewise  in  fault 
if  he  violates  that  duty.  When  an  injury  to  one  results  from  the  fault 
of  both,  the  equitable  rule  would  be  that  each  should  suffer  in  pro- 
portion to  his  wrong.  But  on  grounds  of  public  policy  the  law  has 
established  an  arbitrary  rule  that  when  the  injury  complained  of  has 
been  caused  by  culpable  negligence  of  both  plaintiff  and  defendant, 
it  has  not  been  caused  by  the  negligence  of  the  defendant,  and  so  the 

^  Other  grounds  of  error,  and  questions  of  pleading  have  been  omitted. 


204  WEISS    V.    PENNSYLVANIA    RAILKO.VD    CO.  [CHAP.    III. 

plaintiff  cannot  recover  for  the  injury.  Park  v.  O'Brien,  23  Conn. 
339,  345 ;  Brown  &  Bros.  v.  Illius,  27  Id.  84,  92 ;  Isbell  v.  N'ew  York 
&  ^.  H.  K.  Co.,  Ibid.  393,  40G ;  Bartram  v.  Sharon,  71  Id.  686,  689 ; 
The  Bernina,  L.  R.  12  Prob.  Div.  36,  89.  This  arbitrary  rule  not  only 
affects  a  right  of  action,  but  operates  as  a  rule  of  evidence.  The  fact 
that  the  plaintiff's  injury  was  caused  by  the  negligence  of  the  de- 
fendant, demands  evidence  that  it  was  not  also  caused  by  the  plain- 
tiff's negligence.  This  view  logically  supports  the  rule  followed  in 
this  and  some  other  States,  that  the  burden  of  proof  upon  the  question 
of  contributory  negligence  rests  upon  the  plaintiff ;  and  it  also  logically 
supports  the  conclusion  that  an  allegation  that  the  injury  to  the 
plaintiff  was  caused  by  the  negligence  of  the  defendant  necessarily 
involves  the  allegation  that  the  negligence  of  the  plaintiff  did  not 
contribute  to  the  injury.  Therefore,  in  a  complaint  sounding  in  tort, 
to  recover  for  an  injury  due  to  the  negligence  of  another,  a  direct 
allegation  that  the  injury  was  caused  by  the  defendant's  negligence 
must  involve  the  allegation  that  the  negligence  of  the  plaintiff  did  not 
contribute  to  the  injury ;  in  such  case  a  separate  allegation  to  that 
effect  is  unnecessary.  There  need  be  no  direct  allegation  of  a  fact 
necessarily  implied  from  other  averments.  Lord  v.  Russell,  64  Conn. 
86,  87.  Where  a  direct  allegation  of  the  exercise  of  due  care  on  tlie 
part  of  the  plaintiff  may  be  proper,  as  in  action  on  the  statute  for 
injuries  caused  by  a  defect  in  a  highway,  it  is  sufficient  in  substance  to 
allege  facts  which  show  that  the  plaintiff  was  in  the  exercise  of  due 
care.  In  the  complaint  before  us,  the  fact  that  the  injury  was  caused 
by  the  negligence  of  the  defendant  is  not  directly  alleged,  but  the 
facts  alleged  show  that  the  injury  was  so  caused  and  that  the  negli- 
gence of  the  plaintiff  did  not  contribute  to  the  injury.  We  think  the 
complaint  supports  the  judgment. 

There  is  no  error  in  the  judgment  of  the  Superior  Court. 

In  this  opinion  the  other  judges  concurred. 

Note:  Wliether  the  plaintiff's  negligence  did  contribute  to  the 
injury  is  a  question  of  proximate  and  remote  cause,  considered  post  p. 
000  et  sqq. 


WEISS  V.  PENNSYLVANIA  RAILROAD  COMPANY. 

Supreme  Court  of  Pennsylvania,  October,  1875.    79  Pa.  St.  387. 

Action  for  negligence  by  the  plaintiffs,  widow  and  minor  children 
of  Jacob  Weiss,  deceased,  to  recover  damages  for  the  killing  of  the  de- 
ceased by  one  of  the  defendant's  trains.  At  the  trial  it  appeared  in 
evidence  that  Parade  Street  in  the  City  of  Erie  crossed  the  tracks  of 
the  defendant's  railroad,  north  and  south ;  that  at  the  place  of  crossing 


CHAP.   III.]  NEGLIGENCE.  205 

there  were  two  tracks  of  the  defendant's  road,  and  four  tracks  of  the 
Lake  Shore  and  Michigan  Railroad  farther  north;  that  the  station 
of  the  defendant  railroad  was  west  of  the  crossing  at  Parade  Street; 
that  freight  cars  were  standing  on  the  defendant's  northerly  track 
and  that  one  of  them  extended  so  far  into  Parade  Street  that  travellers 
in  passing  were  obliged  to  go  out  into  the  street;  that  other  freight 
cars  stood  on  the  same  track  on  the  easterly  side  of  Parade  Street, 
and  that  there  was  but  a  narrow  passage  between  the  freiglit  cars  on 
either  side  of  the  street;  that  the  deceased,  driving  southerly  along 
Parade  Street  and  across  the  tracks,  was  struck  and  killed  by  a  pas- 
senger train  of  the  defendant's  which  had  just  previously  left  de- 
fendant's station.  There  was  conflicting  evidence  whether  the  de- 
ceased had  control  of  his  horse ;  whether  he  struck  the  horse  just  before 
the  catastrophe,  and  whether  the  engineer  of  the  defendant's  train 
sounded  the  whistle  or  rang  his  bell.  There  was  also  conflicting  evi- 
dence as  to  the  speed  of  the  train,  the  estimates  of  witnesses  varying 
from  six  to  twenty-five  miles  per  hour. 

The  court  charged  the  jury  among  other  things,  that  "  it  was  an  act 
of  negligence,  under  the  circumstances,  to  be  so  near  the  track  on 
which  defendant's  train  was  passing,  and  does  not  alter  the  legal  con- 
clusion which  we  have  stated  in  the  general  charge,  and  your  finding 
under  the  circumstances  should  be  for  the  defendant,  and  the  court  so 
directs." 

The  verdict  was  for  the  defendant  and  the  plaintiff  took  a  writ  of 
error  and  assigned  for  error  the  charge  of  the  court  directing  a  verdict 
for  the  defendant. 

Mr.  Justice  Shaeswood.  When  the  plaintiffs  below  closed  their 
evidence,  they  had  a  perfect  prima  facie  case  to  go  to  the  jury.  They 
had  given  evidence  of  the  negligence  of  the  defendants,  and  no  con- 
tributory negligence  of  the  deceased  appeared.  The  presumption  of 
law  was  that  he  had  done  all  that  a  prudent  man  would  do  under  the 
circumstances  to  preserve  his  own  life,  and  that  he  had  stopped  and 
looked  and  listened:  Penna.  Eailroad  Co.  v.  Weber,  26  P.  F.  Smith 
157.  The  onus  of  proving  contributory  negligence  was  thus  clearly 
cast  upon  the  defendants.  "  It  is  true,"  says  Mr.  Justice  Williams, 
"that  when  the  plaintiff's  own  evidence  discloses  contributory  negli- 
gence there  can  be  no  recovery;  but  if  it  does  not,  the  burden  is  on 
the  defendant  to  disprove  care ;  and  in  such  case  the  question  of  negli- 
gence is  for  the  jury."  It  is  clear,  then,  that  there  was  error  in  the 
binding  direction  given  by  the  learned  judge  to  the  jury  to  find  for 
the  defendants.  The  testimony  of  one  witness  that  Jacob  Weiss  did 
not  stop,  and  that  he  could  have  seen  the  train  if  he  had  looked,  did 
not  justify  the  court  in  taking  the  case  from  the  jury.  The  fact  that 
the  horse  the  deceased  was  driving  became  frightened  and  unman- 
ageable a  short  distance  from  the  railroad,  if  the  animal  was  a  gentle 
one,  and  was  frightened  through  the  negligence  of  the  defendants,  and 


206  LESAN   V.    MAINE    CENTRAL   RAILROAD   CO.  [CIIAP.    III. 

being  beyond  the  control  of  the  deceased,  rushed  on  the  track,  was 
an  important  element  bearing  upon  the  case. 

The  question  of  concurring  negligence  in  the  deceased,  under  all 

the  circumstances  of  the  case,  should  have  been  submitted  to  the  jury. 

Judgment  reversed  and  venire  facias  de  novo  awarded. 


LESAN  V.  MAINE  CENTEAL  KAILROAD  COMPANY. 

Supreme  Court  of  Maine,  January,  1885.     77  Me.  85. 

Action  for  negligence.  There  was  a  verdict  for  the  plaintiff  and 
the  defendants  moved  to  set  aside  the  verdict  and  for  a  new  trial.  The 
facts  are  stated  in  the  opinion. 

Peters,  C.  J.  To  entitle  the  plaintiff  to  recover,  he  must  show, 
first,  that  the  defendants  were  guilty  of  negligence;  the  injury  itself 
does  not  import  negligence. 

Secondly,  he  must  show  that  their  negligence  caused  the  accident. 
There  must  be  a  visible  connection  of  cause  and  effect.  It  is  not 
enough  to  show  that  the  defendants'  negligence  was  adequate  and 
sufficient  to  cause  it  —  that  it  might  have  caused  it  —  he  must  show 
that  it  did  cause  it;  that  it  was  the  predominating  efficient  cause  of 
the  accident  and  injury. 

If  the  accident  was  caused  partly  by  the  plaintiff's  own  negligence, 
then  it  was  not,  in  a  legal  sense,  caused  by  the  negligence  of  the 
defendants.  In  .such  case,  it  was  caused  by  both  parties.  If  the 
result  was  produced  by  a  commingling  of  the  negligence  of  the  two 
parties,  the  plaintiff  cannot  recover. 

Therefore,  thirdly,  the  plaintiff  must  produce  affirmative  proof, 
directly  or  indirectly,  that  he  was  not  himself  guilty  of  any  negligence 
which  helped  cause  the  accident.  Sometimes  this  is  impliedly  shown 
by  the  proof  of  the  manner  of  the  injury.  That  is,  by  proving  the 
defendant's  negligence,  the  same  proof  may  exculpate  the  plaintiff 
from  any  charge  of  negligence.  It  may  be  inferred  that  a  plaintiff 
was,  at  the  time  of  an  accident,  using  due  care,  from  the  absence  of 
all  appearances  of  fault  upon  his  part  in  tlie  circumstances  under 
which  the  accident  happened.  To  state  the  requirements  more  pre- 
cisely, the  plaintiff  must  show  affirmatively,  or  it  must  affirmatively 
appear,  that  he  was  himself  in  the  use  of  due  care.  If  it  so  appears 
from  a  full  account  of  the  circumstances  attending  the  occurrence, 
whether  the  evidence  be  put  in  for  one  purpose  or  anotlicr,  then  he 
does  affirmatively  sustain  the  l)urden  obligatory  upon  him. 

To  illustrate  the  idea:  T\v  the  negligence  of  a  railroad  company  a 
train  of  cars  runs  off  the  track,  whereby  passcngiM's  are  injured.  In 
such  a  case  the  passenger,  ordinarily  situated  in  the  car,  who  sues  for 


CHAP.    III.]  NEGLIGENCE.  207 

damages  for  his  injury,  would  not  be  required  to  show  any  fact  fur- 
ther than  the  occurrence  itself.  Proof  of  the  accident  tells  all  that 
can  be  told,  —  is,  prima  facie  at  least,  the  whole  story.  Ees  ipsa 
loquitur.  Stevens  v.  Railway,  66  Maine,  74.  The  injured  party  is 
passive  in  such  a  ease.  In  the  case,  however,  of  a  collision  between  a 
railroad  train  and  the  wagon  of  a  traveller,  the  traveller  plays  usually 
an  active  part  disconnected  with  or  independent  of  the  acts  of  others, 
and  the  acts  of  the  two  parties  conjunctively  produce  a  collision.  In 
such  case  not  much  can  be  based  upon  inference  and  presumption. 
The  prosecuting  party  must  make  it  distinctly  appear  that  his  own 
remissness  did  not  contribute  in  causing  the  injury. 

The  present  case  is  of  the  latter  description.  With  the  burden  of 
proof  on  the  plaintiff,  we  think  the  verdict  in  his  favor  should  not 
stand.  His  conduct  seems  to  have  been  in  no  view  defensible.  He 
knew  the  situation  of  the  crossing;  was  aware  that  an  engine  was 
likely  at  any  time  to  be  upon  the  track;  could  have  both  seen  and 
heard  the  movement  of  the  engine  seasonably  to  enable  him  to  save 
himself  from  injury  and  testified  that  he  does  not  know  whether  he 
did  either  or  not;  was  driving  rapidly  upon  a  descending  grade  to 
the  crossing,  passing  another  team  on  the  way;  and,  when  it  was  too 
late  for  either  party  to  avoid  the  predicament,  met  with  the  accident. 
It  was  the  repetition  of  an  experiment  too  often  made,  of  taking 
narrow  chances  in  passing  in  front  of  an  advancing  train.  Our  very 
strong  belief  is,  that  the  absence  of  whistling  or  bell-ringing  or  of 
signalling  of  any  kind  played  no  material  part  in  causing  the  accident. 
When  the  agents  of  the  company  saw  that  a  collision  was  impending 
they  were  helpless  to  prevent  it. 

The  rule  is  now  firmly  established  in  this  state,  as  well  as  by  courts 
generally,  that  it  is  negligence  per  se,  for  a  person  to  cross  a  railroad 
without  first  looking  and  listening  for  a  coming  train  if  there  is  a 
chance  for  doing  so.^  State  v.  Maine  Central,  76  Maine,  357.  "  iSTo 
neglect  of  duty  on  the  part  of  a  railroad  company  will  excuse  any  one 
approaching  such  a  crossing  from  using  the  senses  of  sight  and  hearing 
where  these  may  be  available."  1  Thomp.  Neg.  p.  426,  and  cases  in 
notes.  Experience  has  taught  men  that  there  are  and  can  be  no  safe- 
guards against  injuries  at  railway  crossings  nearly  as  efficacious  as  to 
look  and  listen  for  an  approaching  train. 

The  counsel  for  the  plaintiff  in  an  able  argument  upon  the  facts 
of  the  case,  places  too  much  reliance  upon  his  view  of  the  relative 
rights  of  the  parties  in  the  use  of  the  highway  at  its  crossing  with  the 
railroad.  At  the  place  of  intersection  there  are,  no  doubt,  concurrent 
rights.  Neither  has  an  exclusive  right  of  passage.  They  have  equal 
rights.  But  the  manner  of  exercising  those  rights  is  quite  another 
thing.  A  railroad  company  would  not  have  the  right  to  occupy  the 
way  in  a  manner  or  to  an  extent  that  would  unreasonably  delay  the 

»  Cf.  EUiott  V.  Chicago,  etc.,  R.  R.,  ante  p.  129. 


208  MILLS    V.    ARMSTRONG.  [CHAP.    III. 

public  travel  or  render  it  dangerous ;  nor  to  start  a  train  at  an  instant 
when  it  would  be  likely  to  produce  collision.  But  when  a  train  is 
under  way  it  has  the  first  right  of  the  road.  Its  right  may  then  be 
first  exercised.  It  cannot  be  required  to  stop  except  in  cases  of  ap- 
parent danger  not  otherwise  avoidable.  The  traveller  must  stop  for 
the  train.  For  that  purpose  are  the  requirements  of  signals  and  gates 
and  the  like  to  warn  the  traveller  to  keep  out  of  the  way.  There  must 
be  a  uniform  and  certain  rule  to  regulate  the  matter  or  dire  confusion 
would  ensue.  The  persons  running  a  train  have  the  right  of  relying 
upon  the  supposition  that  a  traveller  intends  to  wait  for  the  passing  of 
the  train,  unless  it  appears  that  he  has  not  a  chance  to  do  so. 

[The  court  here  discusses  the  mutual  rights  of  a  railroad  and  a 
traveller  on  the  highway  at  railroad  crossings  and  the  duty  of  the  rail- 
road to  station  flagmen  at  crossings,  citing  Continental  Improvement 
Co.  V.  Stead,  95  U.  S.  161 ;  Whitney  v.  Railroad,  69  Me.  208;  McGrath 
V.  Railroad,  63  N.  Y.  528 ;  Com.  v.  Railroad,  101  Mass.  201 ;  Hough- 
kirk  V.  Canal  Co.,  92  N.  Y.  219;  Cumberland  Valley  R.  R.  v.  Man- 
gans,  23  Am.  Law.  Reg.  N.  S.  518  and  1  Thom.  Xeg.  419]. 

Motion  sustained. 

Danforth,  Virgin,  Foster,  Emery  and  Haskell,  JJ.,  concurred. 

Note:  For  a  citation  and  discussion  of  the  conflicting  authorities 
upon  the  question  of  the  burden  of  proof  of  the  plaintiff's  contributory 
negligence,  see  Beach,  Contributory  Negligence  (2d  edition)  chapter 
XV. 


MILLS  V.  ARMSTRONG. 

THE    BERNINA. 
House  of  Lords  of  England,  1888.     13  A.  C.  1. 

Appeal  from  a  decision  of  the  Court  of  Appeal,  reported  as  the 
Bernina,  12  P.  D.  58. 

The  facts  appeared  in  a  special  case  stated  for  the  opinion  of  the 
court  in  three  actions  in  personam  brought  in  the  Admiralty  Division 
against  the  owners  of  the  steamship  Bernina,  who  were  the  appellants 
in  tins  appeal. 

In  September,  1884,  a  collision  occurred  between  the  Bernina  and 
the  steamship  Bushire,  the  result  of  which  was  that  J.  H.  Armstrong, 
first  engineer  of  the  Bushire,  T.  T.  Owen,  second  officer  of  the  Bushire, 
and  M.  A.  Toeg,  a  passenger  on  board  the  Bushire,  were  drowned. 
The  collision  was  caused  by  the  fault  or  default  of  the  master  and 
crew  of  the  Bushire.^  Armstrong  and  Toeg  had  nothing  to  do  with 
the  negligent  navigation  of  the  Bushire,  but  Owen  was  in  charge  of 
her  at  the  time  and  was  directly  responsible  for  it.    The  three  actions 

'  Thf  colllHlon  wiiH  cinisofl  by  the  fsiult  of  the  master  and  crew  of  both  vessels; 
■ee   oylnlon   of    Lord   lierHchell,   post,    p.    209. 


CHAP.    III.]  NEGLIGENCE.  209 

were  brought  by  the  personal  representatives  of  Armstrong,  Owen,  and 
Toeg  respectively,  to  recover  damages  for  their  respective  deaths. 

The  questions  for  the  opinion  of  the  court  were  (1)  whether  the 
defendants  were  liable  for  the  damages  sustained  in  each  case,  and  (2) 
if  liable,  whether  they  were  liable  to  pay  the  whole  of  such  damages 
or  only  a  moiety  in  each  case.  Butt,  J.,  on  the  authority  of  Thoro- 
good  V.  Bryan,  8  C.  B.  115,  pronounced  that  the  defendants  were  not 
liable  in  any  of  the  actions.  11  P.  D.  31.  The  Court  of  Appeal 
reversed  this  decision  so  far  as  it  concerned  the  actions  by  the  repre- 
sentatives of  Armstrong  and  Toeg,  and  pronounced  that  the  defend- 
ants were  liable  in  those  two  actions  for  the  damages  proceeded  for, 
and  referred  the  amount  to  the  registrar ;  being  of  opinion  that  Thoro- 
good  V.  Bryan  was  wrongly  decided;  that  the  actions  were  not  ad- 
miralty actions;  and  therefore  that  the  admiralty  rule  as  to  half 
damages  did  not  apply  to  them.  12  P.  D.  58,  83,  84,  95. 

Before  the  Court  of  Appeal  the  claim  on  behalf  of  Owen's  repre- 
sentatives was  given  up,  and  the  respondents  in  the  appeal  to  this 
House  consisted  only  of  the  representatives  of  Armstrong  and  Toeg 
respectively.  The  question  upon  the  admiralty  rule  as  to  half  dam- 
ages was  mentioned  by  the  appellant's  counsel  but  was  not  argued 
before  this  House. 

Lord  Herschell.  My  lords,  this  appeal  arises  upon  a  special  case 
stated  in  actions  in  which  the  respondents  are  plaintiffs.  They  are 
both  actions  brought  under  Lord  Campbell's  Act  to  recover  damages 
against  the  appellants  for  the  loss  sustained  owing  to  the  deaths  of  the 
persons  of  whom  the  respondents  are  the  personal  representatives,  and 
who,  it  is  alleged,  lost  their  lives  through  the  negligence  of  the  appel- 
lants. 

The  appellants  are  the  owners  of  the  steamship  Bernina,  between 
which  vessel  and  the  steamship  Bushire  a  collision  took  place,  which 
led  to  the  loss  of  fifteen  persons  who  were  on  board  the  latter  vessel. 
It  is  admitted  that  the  collision  was  caused  by  the  fault  or  default  of 
the  master  and  crew  of  both  vessels.  J.  H.  Armstrong,  whose  admin- 
istratrix one  of  the  respondents  is,  was  a  member  of  the  crew  of  the 
Bushire,  but  had  nothing  to  do  with  its  careless  navigation.  M.  A. 
Toeg,  of  whom  the  other  respondent  is  administratrix,  was  a  passenger 
on  board  the  Bushire. 

The  question  arises  whether,  under  these  circumstances,  the  appel- 
lants are  liable.  The  appellants  having,  as  they  admit,  been  guilty  of 
negligence  from  which  the  respondents  have  suffered  loss,  a  prima 
facie  case  of  liability  is  made  out  against  them.  How  do  they  defend 
themselves?  They  do  not  allege  that  those  whom  the  respondents 
represent  were  personally  guilty  of  negligence  which  contributed  to 
the  accident.  ISTor  again  do  they  allege  that  there  was  contributory 
negligence  on  the  part  of  any  third  person  standing  in  such  a  legal 
relation  towards  the  deceased  men  as  to  cause  the  acts  of  that  third 


210  .  MILLS    V.    ARMSTRONG.  [CIIAP.    IIL 

person,  on  principles  well  settled  in  our  law,  to  be  regarded  as  their 
acts,  as  e.  g.  the  relation  of  master  and  servant  or  employer  and  agent 
acting  within  the  scope  of  his  authority.  But  they  rest  their  defence 
solely  upon  the  ground  that  those  who  were  navigating  the  vessel  in 
which  the  deceased  men  were  being  carried  were  guilty  of  negligence 
without  which  the  disaster  would  not  have  occurred.  In  support  of 
the  proposition  that  this  establishes  a  defence  they  rely  upon  tlie  case 
of  Thorogood  v.  Bryan,  8  C.  B.  115,  which  undoubtedly  does  support 
their  contention. 

This  case  was  decided  as  long  ago  as  1849,  and  has  been  followed 
in  some  other  cases ;  but  though  it  was  early  subjected  to  adverse  criti- 
cism, it  has  never  come  for  revision  before  a  court  of  appeal  until  the 
present  occasion.  That  action  was  one  brought  under  Lord  Campbell's 
Act,  against  the  owner  of  an  omnibus  by  which  the  deceased  man  was 
run  over  and  killed.  The  omnibus  in  which  he  had  been  carried  had 
set  him  down  in  the  middle  of  the  road  instead  of  drawing  up  to  the 
kerb,  and  before  he  could  get  out  of  the  way  he  was  run  over  by  the 
defendant's  omnibus,  which  was  coming  along  at  too  rapid  a  pace  to 
be  able  to  pull  up.  The  learned  judge  directed  the  jury  that  "  if  they 
were  of  opinion  that  want  of  care  on  the  part  of  driver  of  Barber's 
omnibus  in  not  drawing  up  to  the  kerb  to  put  the  deceased  down,  or 
any  want  of  care  on  the  part  of  the  deceased  himself,  had  been  con- 
ducive to  the  injury,  in  either  of  those  cases  —  notwitlistanding  the 
defendant,  by  her  servant,  had  been  guilty  of  negligence  —  their  ver- 
dict must  be  for  the  defendant."  The  jury  gave  a  verdict  for  the  de- 
fendant, and  the  question  was  then  raised,  on  a  rule  for  a  new  trial 
on  the  ground  of  misdirection,  whether  the  ruling  of  the  learned 
judge  was  right.     The  court  held  that  it  was. 

It  is  necessary  to  examine  carefully  the  reasoning  by  which  this 
result  was  arrived  at.  Coltman,  J. ,  said :  "  It  appears  to  me  that 
having  trusted  tlie  party  by  selecting  the  particular  conveyance,  the 
plaintiff  has  so  far  identified  himself  with  the  o^vner  and  her  servants 
that  if  any  injury  results  from  their  negligence  he  must  be  considered 
a  party  to  it.  In  other  words,  the  passenger  is  so  far  identified  with 
the  carriage  in  which  he  was  travelling  tliat  want  of  care  of  the  driver 
will  be  a  defence  of  the  driver  of  the  carriage  which  directly  caused 
the  injury."  Maule  and  Vaughan  Williams,  JJ.,  also  dwelt  upon  this 
view  of  the  identification  of  the  passenger  with  the  driver  of  the 
vehicle  in  which  he  is  being  carried.  The  former  thus  expressed 
himself:  "  I  incline  to  think  tliat,  for  this  purpose,  the  deceased  must 
be  considered  as  identified  with  the  driver  of  the  omnibus  in  whicli  he 
voluntarily  l)ccame  a  passenger,  and  that  the  negligence  of  the  driver 
was  the  negligence  of  the  deceased."  Vaughan  Williams,  J.,  said :  "  I 
think  the  passenger  must  for  this  purpose  be  considered  as  identified 
witli  tin;  person  liaving  the  management  of  the  omnibus  he  was  con- 
veyed by." 


CHAP.    III.]  NEGLIGENCE.  211 

With  the  utmost  respect  for  these  eminent  judges,  I  must  say  that 
I  am  unable  to  comprehend  this  doctrine  of  identification  upon  which 
they  lay  so  much  stress.  In  what  sense  is  the  passenger  V)y  a  public 
stage-coach,  because  he  avails  himself  of  the  accommodation  afforded 
by  it,  identified  with  the  driver?  The  learned  judges  manifestly  do 
not  mean  to  suggest  (though  some  of  the  language  used  would  seem 
to  bear  that  construction)  that  the  passenger  is  so  far  identified  with 
the  driver  that  the  negligence  of  the  latter  would  render  the  former 
liable  to  third  persons  injured  by  it.  I  presume  that  they  did  not  even 
mean  that  the  identification  is  so  complete  as  to  prevent  the  passenger 
from  recovering  against  the  driver's  master ;  though  if  "  negligence  of 
the  owner's  servants  is  to  be  considered  negligence  of  the  passenger," 
or  if  he  "  must  be  considered  a  party  "  to  their  negligence,  it  is  not 
easy  to  see  why  it  should  not  be  a  bar  to  such  an  action.  In  short,  as 
far  as  I  can  see,  the  identification  appears  to  be  effective  only  to  the 
extent  of  enabling  another  person  whose  servants  have  been  guilty  of 
negligence  to  defend  himself  by  the  allegation  of  contributory  negli- 
gence on  the  part  of  the  person  injured.  But  the  very  question  that 
had  to  be  determined  was,  whether  the  contributory  negligence  of  the 
driver  of  the  vehicle  was  a  defence  as  against  the  passenger  when  suing 
another  wrongdoer.  To  say  that  it  is  a  defence  because  the  passenger 
is  identified  with  the  driver,  appears  to  me  to  beg  the  question,  when 
it  is  not  suggested  that  this  identification  results  from  any  recognized 
principles  of  law,  or  has  any  other  effect  than  to  furnish  that  defence 
the  validity  of  which  was  the  very  point  in  issue.  Two  persons  may 
no  doubt  be  so  bound  together  by  the  legal  relation  in  which  they 
stand  to  each  other  that  the  acts  of  one  may  be  regarded  by  the  law 
as  the  acts  of  the  other.  But  the  relation  between  the  passenger  in 
a  public  vehicle  and  the  driver  of  it  certainly  is  not  such  as  to  fall 
within  any  of  the  recognized  categories  in  which  the  act  of  one  man 
is  treated  in  law  as  the  act  of  another. 

I  pass  now  to  the  other  reasons  given  for  the  judgment  in  Thoro- 
good  V.  Bryan.  Maule,  J.,  says :  "  On  the  part  of  the  plaintiff  it  is 
suggested  that  a  passenger  in  a  public  conveyance  has  no  control  over 
the  driver.  But  I  think  that  cannot  with  propriety  be  said.  He 
selects  the  conveyance.  He  enters  into  a  contract  with  the  owner, 
whom  by  his  servant,  the  driver,  he  employs  to  drive  him.  If  he  is 
dissatisfied  with  the  mode  of  conveyance,  he  is  not  obliged  to  avail 
himself  of  it.  .  .  .  But,  as  regards  the  present  plaintiff,  he  is  not 
altogether  without  fault;  he  chose  his  own  conveyance,  and  must 
take  the  consequences  of  any  default  on  the  part  of  the  driver  whom 
he  thought  fit  to  trust." 

I  confess  I  cannot  concur  in  this  reasoning.  I  do  not  think  it  well 
founded  either  in  fact  or  in  law.  What  kind  of  control  has  the 
passenger  over  the  driver  which  would  make  it  reasonable  to  hold  the 
former  affected  by  the  negligence  of  the  latter?    And  is  it  any  more 


212  MILLS    V.    ARMSTRONG.  [CHAP.    III. 

reasonable  to  hold  him  so  affected  because  he  chose  the  mode  of  con- 
veyance, that  is  to  say,  drove  in  an  omnibus  rather  than  walked  or 
took  the  first  omnibus  that  passed  him  instead  of  waiting  for  another  ? 
And  when  it  is  attempted  to  apply  this  reasoning  to  passengers 
travelling  in  steamships  or  on  railways,  the  unreasonableness  of  such 
a  doctrine  is  even  more  glaring. 

The  only  other  reason  given  is  contained  in  the  judgment  of  Cress- 
well,  J.,  in  these  words :  "  If  the  driver  of  the  omnibus  the  deceased 
was  in  had  by  his  negligence  or  want  of  due  care  and  skill  contributed 
to  an  injury  from  a  collision,  his  master  clearly  could  maintain  no 
action.  And  I  must  confess  I  see  no  reason  why  a  passenger  who 
employs  the  driver  to  convey  him  stands  in  any  better  position." 
Surely,  with  deference,  the  reason  for  the  difference  lies  on  the  very 
surface.  If  the  master  in  such  a  case  could  maintain  no  action,  it 
is  because  there  existed  between  him  and  the  driver  the  relation  of 
master  and  servant.  It  is  clear  that  if  his  driver's  negligence  alone 
had  caused  the  collision,  he  would  have  been  liable  to  an  action  for 
the  injury  resulting  from  it  to  third  persons.  The  learned  judge 
would,  I  imagine,  in  that  case  have  seen  a  reason  why  a  passenger 
in  the  omnibus  stood  in  a  better  position  than  the  master  of  the 
driver.  I  have  now  dealt  with  all  the  reasons  on  which  the  judgment 
in  Thorogood  v.  Bryan  was  founded,  and  I  entirely  agree  with  the 
learned  judges  in  the  court  below  in  thinking  them  inconclusive  and 
unsatisfactory. 

I  will  not  detain  your  lordships  further  on  this  part  of  the  case 
beyond  saying  that  I  concur  with  the  judgments  of  the  learned  judges 
in  the  court  below,  and  specially  with  the  very  exhaustive  judgment 
of  the  Master  of  the  Eolls. 

It  was  suggested  in  the  course  of  the  argument  that  Thorogood  v. 
Bryan  might  be  supported  on  the  ground  that  the  allegation  that  the 
negligence  which  caused  the  injury  was  the  defendant's  was  not 
proved,  inasmuch  as  it  was  the  defendant's  negligence  in  conjunction 
with  that  of  the  driver  of  the  other  omnibus.  It  may  be  that,  as  a 
pleading  point,  this  would  have  been  good.  It  is  not  necessary  to 
express  an  opinion  whether  it  would  or  not.  I  do  not  think  it  would 
have  been  a  defence  on  the  merits  if  the  facts  had  been  properly 
averred.  If  by  a  collision  between  two  vehicles  a  person  unconnected 
with  either  vehicle  wore  injured,  the  owner  of  neither  vehicle  when 
sued  could  maintain  as  a  defence,  "  I  am  not  guilty,  because  but  for 
the  negligence  of  another  person  the  accident  would  not  have  hap- 
pened." And  I  do  not  see  how  this  defence  is  any  more  available  as 
against  a  person  being  carried  in  one  of  the  vehicles,  unless  the  rea- 
soning in  Thorogood  v.  Bryan  be  well  founded. 

I  liave  said  that  the  decision  in  Thorogood  v.  Bryan  has  not  been 
un(|uo8tioned.  I  do  not  think  it  necessary  to  enter  upon  a  minute 
consideration  of  the  subsequent  cases,  after  the  careful  and  accurate 


CHAP.    III.]  NEGLIGENCE.  213 

examination  to  which  llicy  have  been  subjected  by  the  Master  of  the 
Eolls.  The  result  may  be  summarized  thus:  The  learned  editors  of 
Smith's  Leading  Cases,^  Willes  and  Keating,  JJ.,  strongly  questioned 
the  propriety  of  the  decision.  Parke,  B.,  whose  dictum  in  Bridge  v. 
Grand  Junction  Ry.  Co.,  3  M.  &  W.  244,  Williams,  J.,  followed  in 
directing  the  jury  in  Thorogood  v.  Bryan,  appears  to  have  doubted 
the  soundness  of  the  judgment  in  that  case.  Dr.  Lushington,  in  The 
Milan,  Lush.  388,  expressed  strong  disapproval  of  it;  and  though 
in  Armstrong  v.  Lancashire  &  Yorkshire  Ry.  Co.,  L.  R.  10  Ex.  47, 
it  was  followed,  and  Bramwell  and  Pollock,  BB.,  to  say  the  least  did 
not  indicate  dissatisfaction  with  it,  I  understand  that  my  noble  and 
learned  friend  Lord  Bramwell,  after  hearing  this  case  argued,  and 
maturely  considering  it,  agrees  with  the  judgment  of  the  court  below. 
In  Scotland  the  decision  in  Thorogood  v.  Bryan  was  pronounced  un- 
satisfactory, in  Adams  v.  Glasgow  &  Southwestern  Ry.  Co.,  3  Ct. 
Sess.  Cas.  4th  Ser.  215.  In  America  it  has  been  followed  in  the 
courts  of  some  States,  but  it  has  often  been  departed  from,  and  upon 
the  whole  the  view  taken  has  been  decidedly  adverse  to  it.  The  latest 
case  that  I  am  aware  of  in  that  country  is  Little  v.  Hackett,  116 
U.  S.  366.  That  was  a  decision  of  the  Supreme  Court  of  the  United 
States,  whose  decisions,  on  account  of  its  high  character  for  learning 
and  ability,  are  always  to  be  regarded  with  respect.  Field,  J.,  in  de- 
livering judgment  examined  all  the  English  and  American  cases,  and 
the  conclusion  adopted  was  the  same  as  that  at  which  your  lordships 
have  arrived. 

I  have  only  this  observation  to  add.  The  case  of  Waite  v.  North- 
eastern Ry,  Co.,  E.,  B.  &  E.  719,  was  much  relied  on  in  the  argument 
for  the  appellants;  but  the  very  learned  counsel  who  argued  that 
case  for  the  defendants,  and  all  the  judges  who  took  part  in  the  de- 
cision, were  of  opinion  that  it  was  clearly  distinguishable  from  Thoro- 
good V.  Bryan,  and  did  not  involve  a  review  of  that  case.  I  think 
they  were  right. 

As  regards  the  other  questions  raised,  I  have  only  to  say  that  I 
think  they  were  properly  dealt  with  by  the  court  below. 

I  am  requested  by  my  noble  and  learned  friend  Lord  Bramwell, 
who  was  unable  to  remain  to  read  the  opinion  which  he  had  prepared, 
to  state  that  he  concurs  in  the  motion  which  I  am  about  to  make.^ 

Lord  Watson  delivered  a  concurring  opinion. 

Lord  Macnaghten  concurred. 

Order  appealed  from,  affirmed,  &c. 

1  In  notes  to  Ashby  v.  White. 

'  Lord  Bramwell.  in  Iiis  opinion,  treated  the  question  in  Thorosrood  r.  Bryan  as 
turning  upon  the  pleading,  and  in  that  aspect  as  right.  The  special  plea  in  regard 
to  the  defendant's  negligence  had  not,  said  his  lordship,  heen  proved.  The  plea 
alleged  defendant's  negligence  alone  ;  the  proof  showed,  not  joint  negligence  by  two 
persons,  but  two  separate  acts  of  negligence. 


214  WARREN    V.    MANCHESTER   ST.   RY.  [CHAP.    III. 

WAEREN,  AdmX  v-  MANCHESTEE   STREET  RAILWAY. 

Supreme  Court  of  New  Hampshire,  June,  1900.     70  N.  H.  352. 

Case,  for  negligence.  Verdict  for  the  plaintiff.  The  defendants, 
while  running  an  electric  car  in  a  public  street  in  Manchester,  struck 
and  killed  the  intestate,  an  infant  three  \^ars  old,  who  had  left  his 
home  unobserved,  ten  minutes  before  the  accident.  His  mother  was 
ill  in  bed,  and  his  father  was  away  at  work.  The  plaintitf' s  evidence 
tended  to  prove  the  following  facts:  When  the  car  was  about  fifty 
feet  from  the  place  of  the  accident,  the  child  was  within  four  or 
five  feet  of  the  track,  walking  slowly  toward  it.  Apparently  the 
motor-man  did  not  notice  him.  The  car  was  running  twelve  to  fif- 
teen miles  an  hour,  and  the  motor-man  did  not  put  on  the  brake  in 
season  to  avoid  the  injury.  The  accident  occurred  on  the  afternoon 
of  a  summer  day,  and  there  was  no  obstruction  to  prevent  the  motor- 
man  from  discovering  the  child  sooner  than  he  did.  The  car  had 
no  fender  attached  to  it.  If  there  had  been  one,  the  danger  of  injury 
would  have  been  much  less. 

The  defendants'  evidence  tended  to  prove  that  the  child  started 
suddenly  from  the  side  of  the  street  to  cross  the  track,  when  the  car 
was  nearly  opposite  to  him,  and  that  the  motor-man,  on  account  of 
excitement,  failed  to  reverse  the  power. 

Subject  to  the  defendants'  exception,  the  intestate's  father  was 
not  allowed  to  testify  upon  cross-examination  whether  or  not  he  per- 
mitted the  interstate  to  go  out  unattended.  The  defendants  ex- 
cepted to  the  refusal  of  the  court  to  instruct  the  jury  as  follows: 

1.  If  you  find  that  the  child  strayed  into  the  street  by  reason  of  the 
negligence  of  its  parents,  and  this  contributed  to  the  injury,  the  plain- 
tiff cannot  recover. 

2.  If  you  find  that  the  motor-man  was  acting  under  excitement  at 
the  time  of  the  accident,  and  by  reason  thereof  erred  in  what  he  did, 
—  that  is,  used  the  brake  when  he  ought  to  have  used  the  reverse,  — 
it  was  not  negligence. 

3.  If  you  find  that  the  motor-man,  up  to  the  time  of  the  accident, 
was  in  the  exercise  of  due  care,  and  that  when  he  saw  the  danger  the 
child  was  in  he  acted  under  the  influence  of  sudden  excitement,  and 
on  that  account  erred  in  judgment  by  using  the  brake  instead  of  the 
reverse  lever,  his  conduct  in  so  doing  was  not  negligence. 

4.  If  you  find  that  such  a  fender  as  the  defendants  could  have 
conveniently  used  upon  the  car  at  the  time  of  the  accident  probably 
would  not  have  saved  the  life  of  the  child,  the  absence  of  it  was  not 
ncgligencf  and  cannot  be  considered  in  determining  the  question  of 
the  defendants'  liability. 

The  court  instructed  the  jury  in  part  as  follows :   "  It  was  the  duty 


CHAP.    III.]  NEGLIGENCE.  215 

of  the  defendants  to  use  due  care  to  select  competent  servants  to 
manage  their  cars,  and  if  tlicy  failed  to  exercise  such  care,  they  were 
negligent.  ...  It  was  the  duty  of  the  defendants  to  equip  their  cars 
with  such  safety  appliances  as  men  of  average  prudence  would  use 
under  the  same  circumstances.  They  were  not  hound  to  adopt  all 
such  devices  as  are  put  upon  the  market;  but  if  they  failed  to  use 
such  safety  appliances  as  reasonably  prudent  men  would  use  in  the 
same  circumstances,  they  were  negligent."  Subject  to  the  defendants' 
exception,  the  court  refused  to  qualify  these  instructions  by  adding, 
"  if  the  failure  to  make  the  proper  election  of  servants  or  furnish 
the  proper  appliances  contributed  to  the  accident  or  injury,"  for  the 
reason  tliat  the  qualification  asked  for  was  contained  in  another  part 
of  the  charge. 

PiKE^  J.  The  defendants'  exceptions  to  the  court's  refusals  to 
permit  tlie  father  to  testify  whether  he  allowed  his  chikl  to  go  out 
unattended,  and  to  instruct  the  jury  that  if  the  child  strayed  into 
the  street  in  consequence  of  the  parents'  negligence,  and  this  negli- 
gence contributed  to  cause  the  injury,  the  plaintiff  could  not  recover, 
raise  the  questions  (1)  whether  a  parent's  negligence  is  imputable 
to  his  child,  and  (2)  whether  the  father  of  the  intestate  is  the  real 
plaintiff  in  this  action. 

Had  the  negligence  relied  upon  been  that  of  the  motor-man  solely, 
it  would  be  unnecessary  to  consider  these  questions ;  for  in  that  event 
the  father's  negligence  must  have  been  only  a  remote  cause  of  the 
injury,  and  therefore  would  be  immaterial  to  the  plaintiff's  right 
to  recover.  The  effect  of  this  negligence  would  have  been  only  to 
allow  the  child  to  be  in  a  dangerous  situation.  The  father's  absence 
would  have  rendered  it  impossible  for  him  to  avoid  the  injury  at  the 
time.  "  He  who  cannot  prevent  an  injury  negligently  inflicted  upon 
his  person  or  property  by  an  intelligent  agent  '  present  and  acting 
at  the  time '  ...  is  legally  without  fault,  and  it  is  immaterial 
whether  his  inability  results  from  his  absence,  previous  negligence, 
or  other  cause."  Nashua  Iron  and  Steel  Co.  v.  Eailroad,  62  N.  H.  159, 
163 ;  Felch  v,  Eailroad,  Q>Q>  N.  H.  318 ;  Brember  v.  Jones,  67  N.  H. 
37-1,  376,  377;  Brown  v.  Savings  Bank,  67  N.  H.  549,  551;  Chicker- 
ing  V.  Lord,  67  N".  H.  555,  557 ;  Edgerly  v.  Eailroad,  67  N.  H.  312, 
314,  315,  317.  The  question  for  the  jury  would  have  been  whether 
or  not  the  defendants  by  the  exercise  of  ordinary  care  could  have 
prevented  the  injury;  if  they  could  not,  they  would  have  been  with- 
out fault  and  not  liable ;  if  they  could,  they  would  have  been  "  liable 
whether  the  intestate  was  in  the  street  by  reason  of,  or  without,  his 
parents'  negligence.  In  cases  of  this  character,  where  an  irresponsible 
child  is,  .  .  .  by  the  negligence  of  the  parent,  .  .  .  exposed  to  peril 
without  an  attendant,  .  .  .  the  question  of  contributory  negligence 
is  not  involved."     Bisaillon  v.  Blood,  64  K.  H.  565,  566. 

There  was,  however,  other  evidence  of  the  defendants'  negligence 


216  WAREEN    V.    MANCHESTER    ST.    RY.  [CHAP.    III. 

in  their  failure  to  provide  a  fender  for  the  car.  If  they  had  provided 
one,  the  intestate  might  not  have  been  injured.  This  negligence  was 
due  to  non-action  of  the  defendants  at  some  previous  time.  It  was 
negligence  that  occurred  in  the  past,  the  effect  of  which  the  defend- 
ants could  not  avoid  at  the  moment  of  the  accident  by  the  exercise 
of  ordinary  care.  If,  therefore,  the  father's  negligence  is  imputable 
to  the  child,  or  the  father  is  the  real  plaintiff,  his  negligence  in  allow- 
ing the  child  to  stray  upon  the  track  was  material  if  it  contributed 
to  the  injury.  Nashua  Iron  and  Steel  Co.  v.  Eailroad,  63  N.  H.  159, 
165. 

The  question  whether  a  parent's  negligence  can  be  imputed  to  his 
child,  so  as  to  bar  a  recovery  by  the  child  against  a  third  person,  has 
been  considered  by  the  courts  of  many  states,  and  conflicting  conclu- 
sions have  been  reached.  The  question  first  arose  in  Hartfield  v. 
Eoper,  21  Wend.  615,  where  it  was  decided  in  the  affirmative.  The 
court  said :  "  An  infant  is  not  sui  juris.  He  belongs  to  another,  to 
whom  discretion  in  the  care  of  his  person  is  exclusively  confided. 
That  person  is  keeper  and  agent  for  this  purpose;  and  in  respect 
to  third  persons,  his  act  must  be  deemed  that  of  the  infant;  his 
neglect,  the  infant's  neglect."  This  rule  was  questioned  in  Vermont 
soon  after  its  announcement,  and  has  been  rejected  quite  generally 
elsewhere.  In  Eobinson  v.  Cone,  22  Vt.  213,  224,  Eedfield,  J.,  said: 
"  We  are  satisfied,  that  although  a  child,  or  idiot,  or  lunatic  may  to 
some  extent  have  escaped  into  the  highway  through  the  fault  or 
negligence  of  his  keeper,  and  so  be  improperly  there,  yet  if  he  is  hurt 
by  the  negligence  of  the  defendant,  he  is  not  precluded  from  his 
redress."  In  Smith  v.  O'Connor,  48  Pa.  St.  218,  221,  the  court  said: 
"  We  are  asked  to  approve  and  apply  the  doctrine  held  by  the  New 
York  courts,  and  first  enunciated  in  Hartfield  v.  Eoper,  21  Wend. 
615.  There  it  is  ruled  that  the  negligence  or  imprudence  of  the 
parents  or  guardians  in  allowing  a  child  of  tender  age  to  be  exposed 
to  injury  in  a  highway  furnishes  the  same  answer  to  an  action  by 
the  child  as  the  negligence  or  other  fault  of  an  adult  plaintiff  would 
in  a  similar  case.  The  negligence  of  the  parents  or  guardians  is 
imputed  to  the  child,  and  hence,  unless  the  infant  plaintiff  has  exer- 
cised that  care  and  prudence  which  are  demanded  of  an  adult,  unless 
equally  guiltless  of  any  negligence  concurring  with  a  wrongful  act 
of  a  defendant  in  causing  an  injury,  no  action  can  be  sustained.  This 
is  compelling  the  child  to  the  exercise,  not  of  its  own,  but  of  its 
parents'  discretion.  It  is  holding  it  responsible  for  the  ordinary  care 
of  adults.  In  our  opinion,  the  rule  thus  broadly  stated  docs  not  rest 
upon  sound  reason."  In  Belief ontaine,  etc.,  E.  E.  v.  Snyder,  18  Ohio 
St.  399,  409,  it  was  said:  "  It  is  the  old  doctrine  of  the  father  eating 
grapes,  and  the  child's  teeth  being  set  on  edge.  The  strong  objection 
to  it  is  its  j)alpiible  injustice  to  tlie  infant.  Can  it  be  true,  and  is 
sucb  the  law,  that  if  only  one  party  offends  against  an  infant  he  has 


CHAP.    Ill,]  NEGLIGENCE.  217 

his  action,  hut  tliat  if  two  offend  against  him  their  faults  neutralize 
each  other,  and  he  is  without  remedy?"  In  Newman  v.  Eailroad, 
53  N.  J.  Law  44G,  449,  450,  Beasley,  C.  J.,  said :  "  This  doctrine  of 
the  imputability  of  the  misfeasance  of  the  keeper  of  a  child  to  the 
child  itself  is  deemed  to  be  a  pure  interpolation  into  the  law,  for  until 
the  case  under  criticism  it  was  absolutely  unknown ;  nor  is  it  sus- 
tained by  legal  analogies.  Infants  have  always  been  the  particular 
objects  of  the  favor  and  protection  of  the  law.  In  the  language  of  an 
ancient  authority  this  doctrine  is  thus  expressed :  '  The  common  prin- 
ciple is  that  an  infant  in  all  things  which  sound  in  his  benefit  shall 
have  favor  and  preferment  in  law  as  well  as  another  man,  but  shall 
not  be  prejudiced  by  anything  in  his  disadvantage.'  9  Vin.  Abr,  374. 
And  it  would  appear  to  be  plain  that  nothing  could  be  more  to  the 
prejudice  of  an  infant  than  to  convert,  by  construction  of  law,  the 
connection  between  himself  and  his  custodian  into  an  agency  to 
w^hich  the  harsh  rule  of  respondeat  superior  should  be  applicable. 
The  answerableness  of  the  principal  for  the  authorized  acts  of  his 
agent  is  not  so  much  the  dictate  of  natural  justice  as  of  public  policy, 
and  has  arisen,  with  some  propriety,  from  the  circumstances  that 
the  creation  of  the  agency  is  a  voluntary  act,  and  that  it  can  be  con- 
trolled and  ended  at  the  will  of  its  creator.  But  in  the  relationship 
between  the  infant  and  its  keeper  all  these  decisive  characteristics  are 
wholly  wanting.  The  law  imposes  the  keeper  upon  the  child,  who,  of 
course,  can  neither  control  nor  remove  him,  and  the  injustice,  there- 
fore, of  making  the  latter  responsible  in  any  measure  whatever  for 
the  torts  of  the  former  would  seem  to  be  quite  evident.  Such  sub- 
jectivity would  be  hostile  in  every  respect  to  the  natural  rights  of 
the  infant,  and  consequently  cannot,  with  any  show  of  reason,  be 
introduced  into  that  provision  which  both  necessity  and  law  establish 
for  his  protection.  Nor  can  it  be  said  that  its  existence  is  necessary 
to  give  just  enforcement  to  the  rights  of  others.  When  it  happens 
that  both  the  infant  and  its  custodian  have  been  injured  by  the  co- 
operative negligence  of  such  custodian  and  a  third  party,  it  seems 
reasonable,  at  least  in  some  degree,  that  the  latter  should  be  enabled 
to  say  to  the  custodian,  '  You  and  I,  by  our  common  carelessness,  have 
done  this  wrong,  and  therefore  neither  can  look  to  the  other  for 
redress ; '  but  when  such  wrongdoer  says  to  the  infant,  '  Your  guar- 
dian and  I,  by  our  joint  misconduct,  have  brought  this  loss  upon  you, 
consequently  you  have  no  right  of  action  against  me,  but  you  must 
look  for  indemnification  to  your  guardian  alone,'  a  proposition  is 
stated  that  appears  to  be  without  any  basis  either  in  good  sense  or 
law.  The  conversion  of  the  infant,  who  is  entirely  free  from  fault, 
into  a  wrongdoer,  by  imputation,  is  logical  contrivance  uncongenial 
with  the  spirit  of  jurisprudence.  The  sensible  and  legal  doctrine 
is  this:  an  infant  of  tender  years  cannot  be  charged  with  negligence; 
nor  can  he  be  so  charged  with  the  commission  of  such  fault  by  sub- 


218  WARREN    V.    MANCHESTER   ST.   RY.  [CHAP.    III. 

stitution,  for  he  is  incapable  of  appointing  an  agent,  the  consequence 
being  that  he  can  in  no  case  be  considered  to  be  the  blamable  cause, 
either  in  whole  or  in  part,  of  his  own  injury." 

It  has  never  been  held  in  this  state  that  the  negligence  of  one 
person  is  imputable  to  another,  unless  the  former  was  the  servant 
or  agent  of  the  latter.  Noyes  v.  Boscawen,  64  N.  H.  361.  Appar- 
ently, the  doctrine  of  Hartfield  v.  Eoper  was  based  upon  the  assump- 
tion that  the  custodian  of  the  infant  was  his  agent.  Such  an  assump- 
tion is  clearly  erroneous,  for  no  such  agency  can  exist  in  fact.  All 
the  elements  of  agency  are  wanting.  The  infant  neither  appoints 
his  custodian  nor  has  power  or  capacit}''  to  remove  him.  Such  a 
"  custodian  is  the  agent,  not  of  the  infant,  but  of  the  law.  If  such 
supposed  agency  existed,  it  would  embrace  many  interests  of  the 
infant,  and  could  not  be  confined  to  the  single  instance  where  an  in- 
jury is  inflicted  by  the  co-operative  tort  of  the  guardian.  And  yet 
it  seems  certain  that  such  custodian  cannot  surrender  or  impair  a 
single  right  of  any  kind  that  is  vested  in  the  child,  nor  impose  any 
legal  burthen  upon  it.  If  a  mother,  travelling  with  her  child  in  her 
arms,  should  agree  with  a  railway  company  that,  in  case  of  an  acci- 
dent to  such  infant  by  reason  of  tbe  joint  negligence  of  herself  and 
the  company,  the  latter  should  not  be  liable  to  a  suit  by  the  child, 
such  an  engagement  would  be  plainly  invalid  on  two  grounds,  — 
first,  the  contract  would  be  contra  bonos  mores,  and,  second,  because 
the  mother  was  not  the  agent  of  the  child  authorized  to  enter  into 
the  agreement.  Nevertheless,  the  position  has  been  deemed  defensi- 
ble that  the  same  evil  consequences  to  the  infant  will  follow  from  the 
negligence  of  the  mother,  in  the  absence  of  such  supposed  contract, 
as  would  have  resulted  if  such  contract  should  have  been  made  and 
should  have  held  valid."  Newman  v.  Eailroad,  52  N.  J.  Law  446, 
448. 

The  reasons  which  prevent  an  adult  from  a  recovery  for  injuries 
which  his  negligence  contributed  to  produce  are  (1)  "The  mutuality 
of  the  wrong,  entitling  each  party  alike,  where  both  are  injured,  to 
his  action  against  the  other,  if  it  entitles  either;  (2)  the  impolicy 
of  allowing  a  party  to  recover  for  his  own  wrong;  and  (3)  the  policy 
of  making  the  personal  interests  of  parties  dependent  upon  their  own 
prudence  and  care.  All  these  are  wanting  in  the  case  of  the  infant 
plaintiff."  Bellefontaine,  etc.,  E.  E.  v.  Snyder,  18  Ohio  St.  399,  409. 
If  negligence  of  a  parent  can  be  imputed  to  prevent  a  child's  recovery 
for  its  injury,  it  follows  tbat  it  can  also  be  imputed  to  render  the 
child  liable  in  damages;  but  such  is  not  the  law.  "It  is  difficult  to 
perceive  wbat  principle  of  public  policy  is  to  be  subserved,  or  how 
it  can  be  reconciled  with  justice  to  the  infant,  to  make  his  personal 
rigbls  dependent  upon  tlie  good  or  bad  conduct  of  otbers."  Belle- 
fontaine, etc.,  E.  E.  V.  Snyder,  supra,  409. 

The  doctriiK!  of  Ilarlfldd  v.  Eoper  imposes  burdens  and  hardships 


CHAP,   III.]  NEGLIGENCE.  219 

upon  the  helpless  infant  that  are  manifestly  unjust.  It  is  opposed 
by  the  great  weight  of  modern  authorities,  and  by  sound  judicial 
reason.  Pratt  Coal  &  Iron  Co.  v.  Brawley,  83  Ala.  371,  374;  Rail- 
way Co.  V.  Rexroad,  59  Ark.  180,  185;  Daley  v.  Railroad,  26  Conn. 
591,  598;  Moore  v.  Railroad,  2  Mackey  437,  449;  Chicago,  etc.,  Co. 
V.  Wilcox,  138  111.  370,  373;  Evansville  v.  Senhenn,  151  Ind.  42; 
Wymore  v.  County,  78  la.  396,  397;  Missouri,  etc.,  R'y  v.  Shockman, 
59  Kan.  774 ;  South  Covington,  etc.,  R'y  v.  Herrklotz,  47  S.  W.  Rep. 
265  (Ky.  1898)  ;  Westerfield  v.  Levis,  43  La.  63 ;  Shippy  v.  Au  Sable, 
85  Mich.  280,  292 ;  Westbrook  v.  Railroad,  6G  Miss.  560,  568 ;  Win- 
ters V.  Railway,  99  Mo.  509,  519;  Huff  v.  Ames,  16  Neb.  139,  142; 
Bottoms  V.  Railroad,  114  N.  C.  699,  706;  Erie,  etc.,  R'y  v.  Schuster, 
113  Pa.  St.  412,  416;  Whirley  v.  Whiteman,  1  Head  610,  619;  Nor- 
folk, etc.,  R.  R.  V.  Ormsby,  27  Grat.  455,  476;  Roth  v.  Company,  13 
Wash.  525,  545;  Dicken  v.  Company,  41  W.  Va.  511.  It  is  not  in 
harmony  with  the  principles  of  the  law  of  this  state,  and  is  not 
adopted  as  a  part  of  its  jurisprudence. 

"  Actions  of  tort  for  physical  injuries  to  the  person  .  .  .  and  the 
causes  of  such  actions  shall  survive  to  the  extent  and  subject  to  the 
limitations  set  forth  in  the  five  following  sections,  and  not  otherwise.'* 
P.  S.,  c.  191,  s.  8. 

"  In  such  case,  the  damages  recovered,  less  the  expenses  of  recovery, 
shall  belong  and  be  distributed  as  follows : 

"  I.  To  the  widow  or  widower  of  the  deceased  one  half  thereof,  and 
to  the  children  of  the  deceased  the  other  half  in  equal  shares. 

"  II.  If  there  be  no  child,  to  the  widow  or  widower  the  whole 
thereof. 

"  III.  If  there  be  no  child  and  no  widow  or  widower,  to  the  heirs- 
at-law  of  the  deceased  according  to  the  laws  of  distribution."  lb.,  s.  13. 

"  IV.  If  there  be  a  child  or  children  and  no  widow  or  widower,  to 
the  children  of  the  deceased  in  equal  shares  the  whole  thereof."  Laws 
1893,  c.  67,  s.  5. 

This  action,  brought  by  the  administrator  of  the  child's  estate, 
is  for  the  benefit  of  the  estate  and  not,  as  the  defendants  claim,  for 
the  benefit  of  the  father.  The  fact  that  the  father  will  be  indirectly 
benefited  is  only  an  incident  of  the  suit.  Had  the  child  survived, 
the  action  would  have  been  brought  in  its  own  name.  The  father's 
cause  of  action  would  have  been  what  it  is  now,  —  case  for  the  loss 
of  the  child's  service.  The  child's  cause  of  action  survived  by  reason 
of  the  statute,  and  the  money  recovered  in  it  will  be  assets  in  the 
hands  of  its  administrator,  to  be  distributed  in  accordance  with  the 
special  provisions  of  the  statute.  If  the  father's  negligence  barred 
his  right  to  recover  in  this  action  there  would  seem  to  be  no  reason 
why  it  would  not  bar  him  from  recovering  any  property  of  the 
child  which  he  might  inherit  under  the  general  provisions  relating 
to  descent  and  distribution;   but  this  is  not  claimed  to  be  and  is  not 


220  WARREN    V.    MANCHESTER   ST.    RY.  [CHAP.    III. 

the  law.  The  evidence  of  the  father's  negligence  was  properly  ex- 
cluded, and  the  request  for  instructions  upon  this  point  was  properly 
denied. 

The  second  and  third  requests  were  also  properly  denied.  Even 
if  the  motor-man  was  acting  under  excitement  when  the  accident 
occurred,  and  because  thereof  erred  in  judgment  in  his  efforts  to 
stop  the  car,  it  does  not  follow  that  he  was  in  the  exercise  of  ordinary 
care.  It  was  for  tlie  jury  to  say  whether  "  a  person  of  average  pru- 
dence," situated  as  the  motor-man  was,  "  possessed  of  the  same  knowl- 
edge and  means  of  knowledge  that  he  had  of  the  surrounding  cir- 
cumstances," including  his  excitement,  the  "  impending  clanger,  and 
means  of  avoiding  it,  would  or  might  have  done  as  he  did."  Folsom 
V.  Railroad,  68  N.  H.  454,  460.  The  motor-man's  excitement  was 
only  one  of  several  circumstances  from  which  the  question  of  his 
negligence  was  to  be  determined. 

The  defendants'  duty  to  equip  their  car  with  safety  appliances  wa& 
not  limited  by  their  convenience,  but  included  the  adoption  of  such 
appliances  as  men  of  average  prudence  would  use  under  the  same 
circumstances.  In  any  event,  as  the  plaintiff  says,  "the  defendants 
were  not  harmed  by  the  court's  refusal  to  charge  in  accordance  with 
the  fourth  request.  Assume  tliat  the  jury  found  that  the  fender 
described  in  the  request  probably  would  not  have  saved  the  child; 
that  necessarily  involved  a  finding  that  the  absence  of  it  probably 
did  not  kill  him  or  contribute  to  his  injury.  Hence  the  jury  could 
not  have  placed  its  verdict  upon  the  ground  of  this  default,  having 
been  instructed  that  the  defendants'  negligence  in  any  particular 
must  contribute  to  the  injury  to  warrant  a  recovery." 

The  court,  having  instructed  the  jury  correctly,  was  not  bound  to 
give  the  special  instructions  asked  for  by  the  defendants.  "  It  must 
necessarily  be  left  to  the  presiding  justice  to  decide  how  far  it  would 
be  useful  to  accompany  a  statement  of  legal  propositions  with  obser- 
vations upon  the  facts  of  the  case."  Davis  v.  Eailroad,  68  N.  H.  247, 
252. 

The  refusal  of  the  court  to  qualify  his  instructions  when  the  quali- 
fication was  contained  in  another  part  of  the  charge  raises  no  ques- 
tion of  law.  Such  refusal  was  within  the  discretion  of  the  presiding 
judge.    Davis  v.  Railroad,  supra. 

Exceptions  overruled. 

Young,  J.,  did  not  sit;   tlic  others  concurred. 

Note:  See  Atlanta  &  Charlotte  Air-Line  Ry.  Co.  v.  Gravitt,  93  Ga. 
369,  revi(!wing  the  authorities  upon  the  question  of  imputed  negli- 
gence.    See  also  Bigelow  on  Torts,  8th  ed.  p.  194  et  seq. 


CHAP.    IV.]  SLANDEK   OF    TITLE.  221 


Malice. 

CHAPTER   IV. 
SLANDEE    OF    TITLE. 

MALACHY   V.    SOPER. 

Common  Pleas  of  England,  Michaelmas  Terra,  1836.     3  Bing.  N.  C.  371. 

Action  for  damages  for  false  statements  in  a  newspaper  published 
by  defendants,  in  regard  to  two  suits  in  chancery  against  the  plaintiff, 
to  both  of  which  the  plaintiff  had  filed  demurrers.  The  declaration 
alleged  that  the  plaintiff  was  owner  of  shares  of  stock  in  a  certain 
mine;  that  certain  claimants  to  said  shares  had  filed  a  bill  in  chan- 
cery disputing  the  plaintiff's  right  to  the  same,  to  which  bill  the 
plaintiff  had  demurred ;  that  the  defendants,  well  knowing  the  prem- 
ises, and  contriving,  and  wickedly  and  maliciously  intending,  to  injure 
the  plaintiff  in  his  said  rights,  and  to  cause  it  to  be  suspected  and 
believed  that  the  said  shares  of  the  plaintiffs  were  of  little  or  no  value, 
and  that  the  plaintiff  had  no  right  to  use  or  work  the  said  mine  as 
aforesaid,  and  to  hinder  and  prevent  the  plaintiff  from  selling  or  dis- 
posing of  his  said  shares,  and  from  deriving  or  acquiring  from  the 
said  mine  any  more  profits,  emoluments,  or  advantages  whatever,  and 
also  to  vex,  harass,  oppress,  impoverish,  and  wholly  ruin  the  plaintiff, 
to  wit,  on  the  2d  of  January,  1836,  wrongfully  and  unjustly  did  pub- 
lish, and  cause  and  procure  to  be  published,  a  certain  false,  malicious, 
and  unfounded  libel  in  a  certain  public  newspaper,  of  and  concerning 
the  plaintiffs  and  his  said  shares,  and  the  said  using  and  working  of 
the  said  mine,  and  of  and  concerning  the  aforesaid  suits,  bills,  and 
demurrers,  that  is  to  say:  "Wheal  Brothers  silver  mine  (meaning  the 
said  mine) ;  Tollervey  v.  Malachi  (meaning  the  first-mentioned  suit), 
and  Hay  ward  v.  Malachi  (meaning  the  second-mentioned  suit)  ;  in 
these  cases  (meaning  the  said  two  suits)  which  arose  out  of  disputes 
relating  to  the  celebrated  silver  mine.  Wheal  Brothers,  in  the  parish 
of  Calstock  (meaning  the  said  mine),  and  which  have  been  brought 
into  the  court  of  the  Vice-Chancellor,  the  learned  judge,  after  hear- 
ing long  arguments,  and  a  multitude  of  affidavits,  has  set  aside  the 
demurrers  (meaning  the  said  demurrers),  and  granted  the  prayer  of 
the  petition  (meaning  the  prayer  of  the  petition  in  each  of  the  said 
bills  as  aforesaid,  for  an  account  and  an  injunction),  and  persons 
duly  authorized  have  arrived  on  the  workings  "  (meaning  the  workings 


222  MALACHY   V.    SOPER.  [CHAP.    IV. 

of  the  said  mine)  ;  thereby  then  meaning  that  the  said  several  de- 
murrers had  been  set  aside  by  the  said  court,  and  that  the  prayer  of 
the  said  petition  on  each  of  the  said  bills  for  an  account  and  injunc- 
tion had  been  granted  by  the  said  court,  and  that  persons  duly  autlior- 
ized  by  the  said  court  had  arrived  on  the  workings  of  the  said  mine, 
and  were  hindering  and  preventing  the  said  mine  from  being  used 
and  worked  as  it  was  before  the  committing  of  the  grievance,  and  as 
the  same  would  have  continued  to  have  been,  in  so  ample  and  bene- 
ficial a  manner  for  the  plaintiff,  and  others,  the  holders  of  shares  in 
the  said  mine;  whereas,  in  truth  and  in  fact,  at  the  time  of  the 
committing  of  the  grievance,  the  said  demurrers  had  not,  nor  had 
either  of  them,  been  set  aside  by  the  said  court,  nor  had  the  prayer 
of  the  said  petition,  on  each  of  the  said  bills,  for  an  account  and  in- 
junction been  granted  by  the  said  court;  and  whereas  in  truth  and 
In  fact,  at  the  time  of  the  committing  of  the  grievance,  no  person  or 
persons,  duly  authorized  by  the  said  court,  had  carried  on  the  work- 
ings of  the  said  mine,  nor  was  nor  were  any  person  or  persons  hinder- 
ing or  preventing  the  said  mine  from  being  used  and  worked  as  it  had 
been  before  this  committing  of  the  said  grievance,  and  as  the  same 
would  have  continued  to  have  been,  in  so  ample  and  beneficial  a  man- 
ner for  the  plaintiff,  and  others,  the  holders  of  shares  in  the  said  mine. 
By  means  of  which  said  several  premises  the  plaintiff  had  been  and 
was  greatly  injured  in  his  said  rights;  and  the  said  shares  so  pos- 
sessed by  him,  and  in  which  he  was  interested  as  aforesaid,  became 
and  were  much  depreciated  and  lessened  in  value,  to  wit,  in  the  value 
of  £50,  on  and  in  respect  of  each  of  such  shares,  and  divers  persons 
had  believed,  and  still  did  believe,  that  the  plaintiff  had  little  or  no 
right  to  the  said  shares,  and  that  the  said  mine  could  not  lawfully  be 
worked  or  used  for  the  benefit  of  the  plaintiff;  and  the  plaintiff  had 
been  hindered  and  prevented  from  selling  or  disposing  of  his  said 
shares  in  the  said  mine,  and  from  working  and  using  the  same  in  so 
ample  and  beneficial  a  manner  as  he  otherwise  would  have  done ;  and 
the  plaintiff  had  been  otherwise  hindered  and  prevented  from  gaining, 
acquiring,  or  deriving  profits,  emoluments,  benefits,  and  advantages 
which  otlierwise  would  have  arisen  and  accrued  to  liim  from  the  same ; 
and  also,  by  reason  of  the  premises  aforesaid,  the  plaintiff  had  been 
and  was  otherwise  much  damnified  and  injured. 

A  verdict  having  been  obtained  for  the  plaintiff  on  this  declaration, 
damages  £5,  a  rule  nisi,  to  arrest  tlie  judgment,  was  obtained  on  the 
ground  that  there  was  no  allegation  or  proof  of  special  damage. 

TiKDAL,  C.  J.  In  this  case  a  verdict  having  been  found  for  the 
plaintiff  at  the  trial  of  the  cause,  with  £5  damages,  a  motion  has  been 
mafle  to  arrest  the  judgment  on  the  ground  that  the  declaration  does 
not  state  any  legal  cause  of  action ;  and  we  are  of  opinion  that  this 
objection  is  well  founded,  and  that  the  judgment  must  be  arrested. 

'J'his  is  not  an  ordinary  action  for  defamation  of  the  person,  by  the 


CHAP.    IV.]  SLANDER   OF    TITLE.  223 

publication  of  slander,  either  oral  or  written,  in  which  form  of  action 
no  special  damage  need  either  be  alleged  or  proved,  the  law  presum- 
ing that  the  uttering  of  the  slanderous  words,  or  the  publishing  of 
the  libel,  have  of  themselves  a  natural  and  necessary  tendency  to  in- 
jure the  plaintiff.  But  this  is  an  action  to  recover  damages  by  reason 
of  the  publication  of  a  paragraph  in  a  newspaper,  which  contains  no 
other  charge  than  that  the  petition  in  a  bill  filed  in  the  Court  of 
Chancery  against  the  plaintiff,  and  certain  other  persons  as  share- 
owners  in  a  certain  mine,  for  an  account  and  an  injunction,  had  been 
granted  by  the  Vice-Chancellor,  and  that  persons  duly  authorized 
had  arrived  in  the  workings.  The  publication,  therefore,  is  one  which 
slanders  not  the  person  or  character  of  the  plaintiff,  but  his  title  as 
one  of  the  shareholders  to  the  undisputed  possession  and  enjoyment 
of  his  shares  of  the  mine.  And  the  objection  taken  is,  that  the  plain- 
tiff, in  order  to  maintain  this  action,  must  show  a  special  damage  to 
have  happened  from  the  publication,  and  that  this  declaration  shows 
none. 

The  first  question,  therefore,  is,  Does  the  law  require  in  such  an 
action  an  allegation  of  special  damage  ?  And,  looking  at  the  authori- 
ties, we  think  they  all  point  the  same  way.  The  law  is  clearly  laid 
down  in  Sir  W.  Jones,  196  (Lowe  v.  Harewood).  "Of  slander  of 
title,  the  plaintiff  shall  not  maintain  action  unless  it  was  re  vera  a 
damage,  scil.,  that  he  was  hindered  in  sale  of  his  land;  so  there  the 
particular  damage  ought  to  be  alleged."  And  in  addition  to  the  cases 
cited  at  the  bar,  viz.,  Sir  John  Tasburgh  v.  Day,  Cro.  Jac.  484,  and 
Manning  v.  Avery,  3  Keb.  153,  the  case  of  Cane  v.  Golding,  Style's 
Eep.  169,  176,  furnishes  a  strong  authority.  That  was  an  action  on 
the  case  for  slandering  the  plaintiff's  title,  by  speaking  these  words, 
viz.,  "  His  right  and  title  thereunto  is  nought,  and  I  have  a  better 
title  than  he."  The  words  were  alleged  to  be  spoken  falso  et  malitiose, 
and  that  he  was  likely  to  sell  and  was  injured  by  the  words;  and 
that  by  reason  of  speaking  the  words  he  could  not  recover  his  titles. 
After  verdict  for  the  plaintiff,  there  was  a  motion  in  arrest  of  judg- 
ment ;  and  Eolle,  C.  J.,  said,  "  There  ought  to  be  a  scandal  and  a 
particular  damage  set  forth,  and  there  is  not  here ; "  and  upon  its 
being  moved  again  and  argued  by  the  judges,  Rolle,  C.  J.,  held,  that 
the  action  did  not  lie,  although  it  was  alleged  that  the  words  were 
spoken  falso  et  malitiose,  for  "  the  plaintiff  ought  to  have  a  special 
cause;  but  that  the  verdict  might  supply;  but  the  plaintiff  ought 
also  to  have  showed  a  special  damagt,  which  he  hath  not  done,  and 
this  the  verdict  cannot  supply.  The  declaration  here  is  too  general, 
and  upon  which  no  good  issue  can  be  joined;  and  he  ought  to  have 
alleged  that  there  was  a  communication  had  before  the  words  spoken 
touching  the  sale  of  the  lands  whereof  the  title  was  slandered,  and 
that  by  speaking  of  them  the  sale  was  hindered;"  and  cited  several 
cases  to  that  effect. 


224  MALACHY    V.    SOPER.  [CHAP.    IV. 

We  hold,  therefore,  on  the  authority  of  these  cases,  that  an  action 
for  slander  of  title  is  not  properly  an  action  for  words  spoken  or  for 
libel  -wTitten  and  published,  but  an  action  on  the  case  for  special 
damage  sustained  by  reason  of  the  speaking  or  publication  of  the 
slander  of  the  plaintiff's  title.  This  action  is  ranged  under  that  divi- 
sion of  actions  in  the  Digests  and  other  writers  on  the  text  law,  and 
such  we  feel  bound  to  hold  it  to  remain  at  the  present  day. 

The  next  question  is.  Has  there  been  such  a  special  damage  alleged 
in  this  case  as  will  satisfy  the  rule  laid  down  by  the  authorities  above 
referred  to  ?  The  doctrine  of  the  older  cases  is,  that  the  plaintiff  ouglit 
to  aver  that,  by  the  speaking,  he  could  not  sell  or  lease  (Cro.  Eliz. 
197,  Cro.  Car.  140)  ;  and  that  it  will  not  be  sufficient  to  say  only,  that 
he  had  an  intent  to  sell,  without  alleging  a  communication  for  sale. 
E.  1,  Eolle,  244.  Admitting,  however,  that  these  may  be  put  as  in- 
stances only,  and  that  there  may  be  many  more  cases  in  Avhich  a  par- 
ticular damage  may  be  equally  apparent  without  such  allegation, 
they  establish  at  least  this,  that  in  the  action  for  slander  of  title  there 
must  be  an  express  allegation  of  some  particular  damage  resulting 
to  the  plaintiff  from  such  slander.  Now  the  allegation  upon  this 
record  is  only  this,  "  that  the  plaintiff  is  injured  in  his  rights,  and 
the  shares  so  possessed  by  him,  and  in  which  he  is  interested,  have 
been  and  are  much  depreciated  and  lessened  in  value ;  and  divers  per- 
sons have  believed  and  do  believe  that  he  has  little  or  no  right  to  the 
shares,  and  that  the  mine  cannot  be  lawfully  worked  or  used  for  his 
benefit;  and  that  he  hath  been  hindered  and  prevented  from  selling 
or  disposing  of  his  said  shares  in  the  said  mine,  and  from  working 
and  using  the  same  in  so  ample  and  beneficial  a  manner  as  he  other- 
wise would  have  done."  And  we  are  of  opinion  that  this  is  not  such 
an  allegation  of  special  damage  as  the  authorities  above  referred  to 
require,  where  tlie  action  is  not  founded  on  the  words  spoken  or 
written,  but  upon  the  special  damage  sustained. 

It  has  been  argued  in  support  of  the  present  action  that  it  is  not 
so  much  an  action  for  slander  of  title,  a5  an  action  for  a  libel  on  the 
plaintiff  in  the  course  of  his  business,  and  in  the  way  of  gaining  his 
livelihood,  and  that  such  an  action  is  strictly  and  properly  an  action 
for  defamation,  and  so  classed  and  held  by  all  the  authorities.  But 
we  think  it  sufficient  to  advert  to  the  declaration,  to  be  convinced  that 
the  publication  complained  of  was  really  and  strictly  a  slander  of  the 
plaintiff's  title  to  his  shares,  and  nothing  else.  The  bill  in  chancery, 
out  of  which  the  publication  arose,  is  filed  by  Tollervey,  who  disputed 
the  plaintiff's  right  to  the  whole  of  the  shares,  and  claimed  in  himself 
a  right  to  part  of  the  same,  and  pra5'ed  that  he  might  be  declared  to 
be  entitled  to  some  of  them  ;  and  the  only  mention  made  as  to  the 
working  of  the  mines  was  with  reference  to  the  appointment  of  a 
receiver  to  the  profits  thereof.  And  we  think  it  would  be  doing  vio- 
lence to  the  natural  meaning  of  the  terms  of  the  publication,  if  we 


CHAP.    IV.]  SLANDER   OF   TITLE.  225 

were  to  hold  it  to  be  published  of  the  plaintiff  in  the  course  of  his 
business  or  occupation  or  mode  of  acquiring  his  livelihood,  and  not 
as  referring  to  the  disputed  title  of  the  shares  of  the  mine. 

It  has  been  urged,  secondly,  that  however  necessary  it  may  be, 
according  to  the  ancient  authorities,  to  allege  some  particular  damage 
in  cases  of  unwritten  slander  of  title,  the  case  of  written  slander 
stands  on  different  grounds;  and  that  an  action  may  be  maintained 
without  an  allegation  of  damage  actually  sustained,  if  the  plaintiff's 
right  be  impeached  by  a  written  publication,  which  of  itself,  it  is 
contended,  affords  presumption  of  injury  to  the  plaintiff.  No  au- 
thority whatever  has  been  cited  in  support  of  this  distinction.  And 
we  are  of  opinion  that  the  necessity  for  an  allegation  of  actual  damage 
in  the  case  of  slander  of  title  cannot  depend  upon  the  medium  through 
which  that  slander  is  conveyed,  that  is,  whether  it  be  through  words 
or  writing  or  print ;  but  that  it  rests  on  the  nature  of  the  action  itself, 
namely,  it  is  an  action  for  special  damage  actually  sustained,  and  not 
an  action  for  slander.  The  circumstance  of  the  slander  of  title  being 
conveyed  in  a  letter  or  other  publication,  appears  to  us  to  make  no 
other  difference  than  that  it  is  more  widely  and  permanently  dissem- 
inated, and  in  consequence  more  likely  to  be  serious  than  where  the 
slander  of  title  is  by  words  only,  but  that  it  makes  no  difference  what- 
ever in  the  legal  ground  of  action. 

For  these  reasons  we  are  of  opinion  that  the  action  is  not  main- 
tainable, and  that  the  judgment  must  be  arrested;  and  consequently 
it  becomes  unnecessary  to  inquire  whether  the  innuendo  laid  in  the 
declaration  is  more  large  thai  it  ought  to  have  been. 

We  therefore  make  the  rule  for  arresting  the  judgment 

Alsoluie.^ 


GOTT  V.  PULSIFEE. 

Supreme  Court  of  Massachusetts,  March,  1877.     122  Mass,  235. 

Tort.  The  declaration  alleged  that,  at  the  time  of  the  publication 
hereinafter  referred  to,  the  plaintiff  was  the  owner  of  a  certain  stone 
figure  or  image,  being  or  resembling  a  colossal  statue  of  a  man,  which 
statue,  figure  or  image  was  formerly  exhumed  at  Cardiff  in  the  State 
of  New  York,  and  was  publicly  known  as  the  "  Cardiff  Giant "  or 
"  Onondaga  Statue ; "  that  the  statue  was  of  great  value  to  the  plain- 
tiff as  a  scientific  curiosity  and  for  the  purpose  of  exhibiting  the 
same  as  such  curiosity,  and  had  long  been  a  source  of  great  gain  and 
profit  to  the  plaintiff  by  exhibiting  the  same  as  a  public  show;  that 
the  defendants  were  on  November  13,  1873,  the  proprietors  and 
publishers  of  a  certain  newspaper  published  in  Boston,  to  wit,  the 
Sunday  Herald;   that  on  that  day  the  defendants  published  in  their 

»  See  White  v.  MeUin,  1895,  A.  C.  154,  House  of  Lords. 


226  GOTT    V.    PULSIFER.  [CHAP.   IV. 

said  paper  a  certain  false,  scandalous  and  malicious  libel  of  and  con- 
cerning the  plaintiff,  and  of  and  concerning  his  said  property,  to  wit, 
his  said  statue,  figure  or  image,  in  the  words  following: 

"  The  sale  of  the  Cardiff  Giant,  so  called,  at  New  Orleans,  for  the 
small  price  of  eight  dollars,  recalls  the  palmy  days  of  that  ingenious 
humbug.  We  well  remember  the  learned  remarks  made  by  connois- 
seurs in  this  city  when  it  was  exhibited  in  a  vacant  store  quite  near 
our  office.  While  the  vulgar  herd  only  looked  on  in  silence,  seeing  a 
colossal  figure  which  excited  their  curiosity,  but  which  they  did  not 
attempt  to  explain,  the  Harvard  professors  and  other  learned  men 
traced  its  pedigree  by  their  knowledge  of  artistic  history,  and  con- 
structed theories  as  to  its  origin,  which  at  on6e  displayed  their  erudi- 
tion, and  helped  to  advertise  the  show.  But  our  professors  and  learned 
men  were  not  the  only  victims  of  the  sell.  A  distinguished  professor 
of  Yale  discussed  learnedly  upon  it  in  the  Galaxy  Magazine.  He 
demonstrated  beyond  a  doubt  that  the  statue  was  authentic,  that  it 
was  antique,  and  that  it  was  a  colossal  monolith.  He  ciphered  it 
down  that  it  was  a  Phoenician  image  of  the  god  Baal,  and  found  no 
difficulty  in  proving  to  his  own  satisfaction  that  it  was  brought  to 
America  by  a  Phoenician  party  of  adventurers,  who  sailed  in  one  of 
the  ships  of  Tarshish,  and  that  it  was  buried  by  the  idolaters  to  save 
it  from  desecration  by  the  hordes  of  savages  who  overpowered  and 
destroyed  the  Phoenicians.  He  accounted  for  several  marks  and  S}Tn- 
bols  upon  the  image,  which  were  unmistakably  Phoenician.  Not  long 
afterwards  the  man  who  brought  the  colossal  monolith  to  light  con- 
fessed that  it  was  a  fraud,  and  the  learned  gentlemen,  who  had  in- 
dorsed its  authenticity,  were  left  as  naked  as  the  statue  itself." 

The  declaration  then  alleged  that  the  statue  had  never  been  sold  in 
New  Orleans  for  eight  dollars,  and  that  it  had  never  been  there ;  that 
by  reason  of  said  libel,  the  plaintiff  was  prevented  from  selling  his 
said  statue,  and  thereby  caused  to  lose  $30,000,  and  that  one  Thomas 
Palmer  had,  prior  to  the  publication  of  said  libel,  agreed  to  purchase 
said  statue,  and  to  pay  therefor  in  real  estate  then  worth  a  large 
sum,  to  wit,  the  sum  of  $30,000,  but  that  by  reason  of  said  libel  said 
Palmer  was  caused  and  induced  to  refuse  to  carry  out  his  agreement, 
and  wholly  abandoned  the  same. 

At  the  trial  in  the  Superior  Court,  before  Eockwell,  J.,  the  publica- 
tion of  the  article  was  admitted  by  the  defendant  and  also  tlie  fact 
that  it  referred  to  the  plaintiff's  statue.  Both  the  plaintiff  and  Palmer 
testified  that  the  latter  agreed  in  writing  to  purchase  one-half  of  the 
statue,  and  offered  for  the  same  real  estate,  worth  at  the  time  of  the 
agreement  $17,000,  and  that  on  account  of  the  defendants'  publication 
he  refused  to  carry  out  his  agreement. 

The  plaintiff  introduced  evidence  tending  to  show  that  the  state- 
ment in  regard  to  the  sale  at  New  Orleans  was  false,  and  offered  evi- 
dence concerning  the  value  of  the  statue  as  a  scientific  curiosity;  but 


CHAP,    IV.]  SLANDER   OF    TITLE.  227 

the  judge  ruled  that  the  question  of  its  value  in  that  respect,  or  for 
purposes  of  exhibition,  was  immaterial. 

The  only  evidence  put  in  by  the  defendants  was  that  one  of  them 
testified  that  he  wrote  the  article  as  a  humorous  comment  on  an  article 
which  he  saw  in  the  Chicago  Tribune,  purporting  to  give  a  detailed 
account  of  the  sale  of  the  Cardiff  Giant  at  New  Orleans  for  $8,  and 
commenting  at  length  thereon ;  and  that  he  did  not  know  the  plaintiff, 
and  wrote  without  malice. 

The  plaintiff  requested  forty-one  instructions  to  the  jury,  of  which 
it  is  only  necessary  to  state  the  following: 

"  9.  That  if  the  defendants  published  said  article  heedlessly  and 
carelessly,  without  due  regard  to  the  rights  of  the  owner  of  the  Cardiff 
Giant,  they  are  liable  to  the  plaintiff  for  all  damages  thereby  caused 
him." 

The  judge  declined  to  give  any  of  the  instructions  requested  in  the 
form  in  which  they  were  presented,  but  instructed  the  jury  as  follows : 

"  This  is  in  effect  an  action  for  special  damages  on  the  case  for  dis- 
paraging the  plaintiff's  statue.  The  only  ground  on  which  it  can  be 
maintained  is  special  damage,  which  must  be  set  out  in  the  declara- 
tion and  established  by  the  proof.  The  only  allegation  of  special 
damage  is  in  relation  to  the  transaction  with  Palmer.  To  sustain  this 
action  the  plaintiff  must  prove,  and  the  jury  must  be  satisfied,  that 
the  publication  was  false  in  some  material  respect,  and  that  it  occa- 
sioned special  damage  to  him,  the  plaintiff,  by  reason  of  the  contract 
with  Palmer,  which  would  have  been  otherwise  carried  through ;  that 
the  publication  was  malicious,  that  is  to  say,  that  the  disposition  and 
purpose  differed  from  the  general  purpose  of  published  news,  or  inter- 
esting and  instructing  their  readers  by  their  published  articles ;  a  dis- 
position wilfully  and  purposely  to  injure  the  value  of  this  statue  with 
wanton  disregard  of  the  interest  of  the  owner.  If  the  plaintiff  has 
shown  that  he  was  the  owner  of  the  statue  alluded  to  in  this  publica- 
tion, that  it  was  valuable  to  him  to  sell  in  whole  or  in  part,  and  that 
the  publication  was  made  falsely  and  maliciously  by  the  defendants, 
and  that  it  caused  an  injury  to  the  plaintiff  by  preventing  the  sale  to 
Palmer,  the  action  may  be  maintained,  although  in  the  publication 
no  imputation  is  cast  on  the  personal  cliaracter  of  the  plaintiff.  But 
if  the  jury  are  satisfied  that  the  publication  was  honestly  made  by 
the  defendants  believing  it  to  be  true,  and  that  there  was  reasonable 
occasion  in  the  conduct  of  their  newspaper  in  matters  where  their 
interests  were  concerned,  an  occasion  which  fairly  warranted  the 
publication,  that  would  be  a  good  defence  to  the  action,  unless  express 
malice  or  malice  in  fact  is  proved." 

The  judge  gave  the  jury  no  instructions  as  to  the  difference  between 
malice  in  fact  and  malice  in  law,  and  gave  the  jury  no  definition  of 
malice,  other  than  as  above  stated ;  but  no  request  was  made  for 
further  instructions  upon  the  subject  of  malice.    Instructions  in  rcla- 


228  GOTT    V.    PULSIFER.  [CHAP.    IV. 

tion  to  damages  were  given  to  which  no  objection  was  made.  The 
jury  found  for  the  defendants;  and  the  plaintiff  alleged  exceptions 
to  the  rulings  and  refusals  to  rule  as  requested. 

Gray,  C.  J.  This  action  is  not  for  a  libel  upon  the  plaintiff,  but 
for  publishing  a  false  and  malicious  statement  concerning  his  prop- 
erty, and  could  not  be  supported  without  allegation  and  proof  of 
special  damage.  Malachy  v.  Soper,  3  Bing.  N.  C.  371 ;  S.  C.  3  Scott, 
723.^  Swan  v.  Tappan,  5  Cush.  104.  The  special  damage  alleged  was 
the  loss  of  the  sale  of  the  plaintiff's  statue  to  Palmer.  Evidence  of 
the  value  of  the  statue  as  a  scientific  curiosity  or  for  purposes  of 
exhibition  was  therefore  rightly  rejected  as  immaterial. 

The  editor  of  a  newspaper  has  the  right,  if  not  the  duty  of  publish- 
ing, for  the  information  of  the  public,  fair  and  reasonable  comments, 
however  severe  in  terms,  upon  anything  which  is  made  by  its  owner 
a  subject  of  public  exhibition  as  upon  any  other  matter  of  public 
interest;  and  such  a  publication  falls  within  the  class  of  privileged 
communications  "  for  which  no  action  can  be  maintained  without  proof 
of  actual  malice.  Dibdin  v.  Swan,  1  Esp.  28.  Carr  v.  Hood,  1  Campb. 
355.    Henwood  v.  Harrison,  L.  E.  7  C.  P.  606. 

But,  in  order  to  constitute  such  malice,  it  is  not  necessary  that 
there  should  be  direct  proof  of  an  intention  to  injure  the  value  of  the 
property;  such  an  intention  may  be  inferred  by  the  jury  from  false 
statements,  exceeding  the  limits  of  fair  and  reasonable  criticism,  and 
recklessly  uttered  in  disregard  of  the  rights  of  those  who  might  be 
affected  by  them.  Malice  in  uttering  false  statements  may  consist 
either  in  a  direct  intention  to  injure  another,  or  in  a  reckless  disre- 
gard of  his  rights  and  of  the  consequences  that  may  result  to  him. 
Commonwealth  v.  Bonner,  9  Met.  410.  Moore  v.  Stevenson,  27  Conn, 
14.  Erie,  C.  J.  in  Hibbs  v.  Wilkinson,  1  F.  &  F.  608,  610 ;  and  in 
Paris  V.  Levy,  2  F.  &  F.  71,  74,  and  9  C.  B.  (N.  S.)  342,  350.  Cock- 
burn,  C.  J.,  in  Morrison  v.  Belcher,  3  F.  &  F.  614,  620;  in  Hedley  v. 
Barlow,  4  F.  &  F.  224,  231 ;  and  in  Strauss  v.  Francis,  4  F.  &  F.  1107, 
1114. 

The  only  definition  of  malice,  given  by  the  learned  judge  who  pre- 
sided at  the  trial,  was  therefore  erroneous,  because  it  reqiiired  the 
plaintiff  to  prove  "  a  disposition  wilfully  and  purposely  to  injure  the 
value  of  this  statue,"  as  well  as  "  wanton  disregard  of  the  interest  of 
the  owner."  The  jury,  upon  the  evidence  before  thorn,  and  under  the 
instructions  given  them,  may  have  been  of  opinion  that  the  defendants' 
statements  that  the  plaintiff's  statue  was  an  "  ingenious  humbug,"  "  a 
sell  "  and  "  a  fraud,"  were  false,  reckless  and  unjustifiable,  and  had 
the  effect  of  injuring  the  plaintiff's  property,  and  caused  him  special 
damage;  and  may  have  returned  their  verdict  for  the  defendants 
solely  because  they  were  not  convinced  that  they  intended  such  injury. 

'Ante,   p.  221. 

*  See  poet,  p.  45C.  f?t  nqq.  ;    nlso  see  BIgelow  on  Torts,  8th  ed.  ch.  IX,  s.  11. 


CHAP.    IV.]  SLANDER   OF   TITLE.  229 

The  ninth  request  for  instructions  distinctly  called  the  attention 
of  the  court  to  the  necessity  of  a  definition  of  the  legal  meaning  of 
malice  in  this  respect.  As  the  instructions  given  were  erroneous  in 
this  particular,  and  we  cannot  know  that  the  error  did  not  affect  the 
verdict,  the  plaintiff  is  entitled  to  a  new  trial,  in  order  that  he  may 
satisfy  a  jury,  if  he  can,  imder  proper  instructions,  that  he  has  a 
good  cause  of  action  against  the  defendants. 

Exceptions  sustained. 


230  EIDER  V.   KITE.  [CHAP.  V. 


CHAPTEE   V. 
MALICIOUS    PROSECUTION. 

Statute  of  Malicious  Appeals/  13  Edward  I,  Chapter  12.  1285. 

Forasmuch  as  many,  through  malice  intending  to  grieve  others, 
do  procure  false  appeals  to  be  made  of  homicides  and  other  felonies 
by  appellors,  having  nothing  wherewith  to  make  satisfaction  to  the 
king,  for  their  false  appeals  nor  to  the  parties  appealed  for  their  dam- 
ages ;  it  is  ordained,  that  when  any,  being  appealed  of  felony  surmised 
upon  him,  doth  acquit  himself  in  the  king's  court  in  due  manner,  either 
at  the  suit  of  the  appellor,  or  of  our  lord  the  king,  the  justices,  before 
whom  such  appeal  shall  be  heard  and  determined,  shall  punish  the 
appellor  by  one  year's  imprisonment,  and  such  appellors  shall  never- 
theless restore  to  the  parties  appealed  their  damages,  according  to  the 
discretion  of  the  justices,  having  respect  to  the  imprisonment  or 
arrestment  that  the  party  appealed  has  sustained  by  reason  of  such 
appeals,  and  to  the  infamy  that  he  has  incurred  by  the  imprisonment 
or  otherwise. 

And  if  peradventure  such  appellor  be  not  able  to  recompense  the 
damages,  it  shall  be  inquired  by  whose  abetment  or  malice  the  appeal 
was  commenced,  if  the  party  appealed  desire  it;  and  if  it  be  found 
by  the  same  inquest  that  any  man  is  abettor  through  malice,  at  the 
suit  of  the  party  appealed,  he  shall  be  distrained  by  a  judicial  writ  to 
come  before  the  justices;  and  if  he  be  lawfully  convicted  of  such 
malicious  abetment  he  shall  be  punished  by  imprisonment  and  restitu- 
tion of  damages,  as  before  is  said  of  the  appellor.  And  from  hence- 
forth in  appeal  of  the  death  of  a  man  there  shall  no  essoin  lie  for  the 
appellor,  in  whatsoever  court  the  appeal  shall  have  been  determined. 


RIDER  V.  KITE. 
Court  of  Errors  and  Appeals  of  New  Jersey,  November,  1897.  61  N.  J.  L.  8. 

On  error  to  Mercer  Circuit. 

The  record  returned  with  this  writ  shows  a  judgment  against 
plaint] fT  in  error  in  favor  of  defendant  in  error  in  an  action  for 
malicir)us  prosecution. 

A  bill   of  exceptions  shows  thnt,  to  prove  tlie  termination  of  the 

'  Sf;e  IllRflow  on  TorlH,  JSili   I'flltlon,   p.   211,   note  1. 


CHAP,   v.]  MALICIOUS    PROSECUTION.  231 

prosecution  complained  of,  evidence  was  given  that  Kite  was  arraigned 
before  a  justice  of  the  peace  upon  a  charge  of  breaking  and  entering, 
&c.,  made  by  Rider;  that  a  hearing  was  demanded  by  Kite  and  ac- 
corded by  the  justice,  and  that  upon  such  hearing  the  justice  dis- 
missed the  complaint  and  discharged  Kite  from  custody.  It  further 
appears  that  the  above  was  the  only  evidence  that  the  prosecution  had 
been  terminated  before  the  commencement  of  the  action.  Thereupon 
a  nonsuit  was  asked  and  refused,  and  an  exception  to  said  refusal  was 
allowed. 

Magie,  C.  J.  The  only  question  presented  in  this  case  is,  whether 
there  was  sufficient  evidence  that  the  prosecution,  which  was  claimed 
to  be  malicious,  had  been  terminated  before  the  commencement  of 
the  action.  If  not,  it  was  error  to  refuse  the  nonsuit,  for  nothing 
is  better  settled  in  this  state  than  that  such  action  cannot  be  main- 
tained unless  the  prosecution  complained  of  had  been  terminated 
before  the  commencement  of  the  action.  Potter  v.  Casterline,  12 
Vroom  22 ;  Apgar  v.  Woolston,  14  Id.  57 ;  Lowe  v.  Wartman,  18  Id. 
413. 

The  contention  on  the  part  of  plaintiff  in  error  is  that  under  our 
Criminal  Procedure  Act  as  amended,  the  discharge  by  the  magistrate 
of  an  accused  person,  upon  examination,  does  not  terminate  the  prose- 
cution, but  that  it  remains  pending  until  the  grand  jury  has  con- 
sidered, or  at  least  has  had  an  opportunity  to  consider,  the  complaint 
by  which  the  prosecution  was  commenced. 

It  is  not  denied  that,  prior  to  the  adoption  of  the  amendments  to 
the  Criminal  Procedure  Act,  to  which  our  attention  is  called,  such  a 
discharge  would  have  terminated  the  prosecution  so  as  to  give  a 
cause  of  action  to  the  injured  party  if  the  prosecution  was  malicious. 
Clearly  it  would  have  done  so.  For  such  an  action  may  be  brought 
whenever  the  particular  prosecution  complained  of  has  been  ended, 
although  the  accused  may  still  be  liable  to  be  called  to  answer  for  the 
same  offence.  The  prerequisite  is  only  that  the  particular  prosecution 
be  disposed  of  in  such  manner  that  it  cannot  be  revived,  and  the  com- 
plainant, if  he  intends  to  proceed  further,  must  institute  proceedings 
de  novo.  Apgar  v.  Woolston,  ubi  supra;  Clark  v.  Cleveland,  6  Hill 
344.  When,  upon  a  criminal  complaint,  an  accused  person  is  arrested 
and  brought  before  a  magistrate,  the  latter,  upon  examination,  may 
require  the  accused  to  enter  into  recognizance  to  abide  the  action  of 
the  grand  jury,  and  in  default  of  such  recognizance,  commit  him  to 
jail  for  the  same  purpose,  or  he  may  dismiss  the  complaint  and  dis- 
charge the  accused  from  custody.  When  the  former  course  is  pursued, 
it  is  obvious  that  the  prosecution  has  not  terminated,  for  the  accused 
is  either  confined  or  under  recognizance  until  the  complaint  whereon 
he  was  arrested  has  been  further  considered.  But  when  the  latter 
course  is  taken  and  the  accused  discharged,  it  is  equally  obvious  that 
the  particular  prosecution  is  at  an  end,  for,  although  the  complaining 


232  EIDER    V.    KITE.  [CHAP.   V. 

witness  may  voluntarily  go  before  the  grand  jury  and  charge  the 
accused  with  the  same  offence,  and  an  indictment  may  even  be  found, 
yet  such  prosecution  would  be  a  new  one  com.menced  by  the  complain- 
ant before  the  grand  jury  and  not  founded  on  the  original  complaint. 
Apgar  V.  Woolston,  ubi  supra;  Fay  v.  O'Neill,  36  N.  Y.  11;  Bobbins 
V.  Robbins,  133  N.  Y.  597;  Moyle  v.  Drake,  141  Mass.  338. 

The  legislation  which,  it  is  contended,  has  changed  this  rule  is  con- 
tained in  two  supplements  to  the  Criminal  Procedure  Act,  —  the 
first  approved  March  12th,  1878  (Gen.  Stat.,  p.  1144,  pi.  124)  and 
the  second  approved  March  24th,  1892  (Gen.  St.  p.  1152,  pi.  162). 

By  the  first  of  these  supplements,  every  justice  of  the  peace  is  re- 
quired to  transmit  to  the  prosecutor  of  the  pleas  of  his  county  "  every 
complaint,  warrant,  recognizance  and  all  other  papers  in  every  crim- 
inal case,"  and  a  failure  to  perform  this  duty,  by  delivering  such 
matters  to  the  prosecutors,  the  day  before  the  first  day  of  each  term, 
is  made  a  misdemeanor. 

The  second  supplement  requires  every  committing  magistrate  to 
keep  a  book  in  which  he  shall  enter  the  name  of  every  person  against 
whom  he  shall  issue  a  warrant,  with  other  particulars  respecting  the 
charge  and  the  proceedings  thereon,  and  to  transmit  the  book  to  the 
prosecutor  within  ten  days  before  each  term,  with  all  papers  in  his 
possession  "  relating  to  criminal  business." 

The  contention  is  that,  notwithstanding  a  complaint  has  been  dis- 
missed, and  the  accused  discharged  from  custody  under  the  warrant, 
the  fact  that  the  complaint  and  warrant  are  transmitted  to  the,  prose- 
cutor of  the  pleas,  continues  the  prosecution  originally  begun  by  the 
complaint.  But  this  contention  cannot  prevail.  If  it  be  assumed 
that  the  legislative  intent  expressed  in  this  supplement  was  to  require 
the  transmission  of  dismissed  complaints  (which  admits  of  a  doubt), 
it  is  impossible  to  discover  an  intent  to  impose  upon  the  prosecutor 
as  a  duty,  to  submit  such  complaints  to  the  grand  jury.  Doubtless, 
if  upon  examination  he  should  be  of  opinion  that  the  accused  in  any 
case  had  been  improperly  discharged,  he  might  lay  that  case  before 
the  grand  jury,  but  tlie  prosecution  thus  commenced  would  be  a  new 
one,  not  founded  on  the  original  complaint,  although  begun  upon  in- 
formation derived  therefrom.  This  supplement  has  not  changed  the 
rule  that  fixed  the  termination  of  a  criminal  prosecution,  for  the  pur- 
pose of  maintaining  an  action  of  this  kind,  at  the  period  of  the  dis- 
charge of  tlie  accused  from  custody  under  the  warrant. 

'J^iie  other  supplement  has  no  applicability.  Its  purpose  is  ex- 
pressed to  be  merely  to  enable  the  prosecutor  to  have  a  check  upon 
committing  magistrates,  and  to  assure  himself  that  all  papers  relating 
to  cririiinal  niatlcrs  bad  b(>en  sent  to  him. 

'J'lie  result  is  tliat  tlu;  nonsuit  was  rightly  refused,  and  the  judgment 
must  be 

Affirmed. 


CHAP,    v.]  MALICIOUS   PROSECUTION.  233 

GEAVES  V.  DAWSON. 
Supreme  Court  of  Massacliusetts,  January,   1881.     130  Mass.   78. 

ToET  for  malicious  prosecution.  Writ  dated  April  20,  1878.  The 
declaration  alleged  that  the  defendant,  maliciously  and  without  prob- 
able cause  therefor,  caused  a  complaint  to  be  sworn  out  before  a  trial 
justice  of  the  county  of  Hampshire,  wherein  the  plaintiff  was  charged 
with  the  crime  of  larceny  of  sundry  articles  alleged  to  be  the  property 
of  the  defendant,  and  of  the  value  of  $175 ;  that  thereupon  the  justice 
issued  his  warrant  for  the  arrest  of  the  plaintiff,  which  was  duly 
served,  and  the  plaintiff  was  brought  into  court;  that  the  defendant, 
wrongfully  and  without  probable  cause,  procured  tlie  justice  to  ad- 
judge that  there  was  probable  cause  to  believe  him,  the  plaintiff,  guilty 
of  the  offence  charged,  and  to  order  him  to  recognize,  with  surety  in 
$500,  for  his  appearance  at  the  Superior  Court  to  be  held  at  North- 
ampton on  the  third  Monday  of  December,  1872;  that  the  plaintiff 
being  unable  to  furnish  sureties  for  said  recognizance,  was  committed 
by  said  justice  to  jail  to  await  the  action  of  the  grand  jury,  and  the 
said  justice  duly  returned  to  said  Superior  Court  authenticated  copies 
of  said  complaint  and  warrant,  and  the  doings  thereon,  and  the  same 
were  entered  on  the  docket  of  said  court;  that  the  plaintiff  was  de- 
tained in  jail,  by  reason  of  said  commitment,  until  December  26,  1872, 
when  it  was  ordered  by  the  justice  of  said  Superior  Court  sitting  at 
Northampton  that  the  plaintiff  be  discharged;  that  the  entry  of  the 
case  on  the  docket  of  the  Superior  Court  was  continued  thereon  until 
December  24,  1873,  when  the  district  attorney  entered  a  nolle  prosequi 
thereon ;  that  the  grand  jury  for  said  county  found  no  bill  against 
the  plaintiff;  and  that  the  prosecution  was  wholly  determined  before 
the  commencement  of  this  action. 

The  defendant  demurred  to  the  declaration,  assigning  the  follow- 
ing reasons  therefor :  "  1.  Because  it  is  nowhere  alleged  in  said  declara- 
tion that  the  matter  of  complaint  and  charge  made  by  the  defendant 
against  the  plaintiff  was  made  or  exhibited  before  the  grand  jury  for 
the  county  of  Hampshire,  or  that  the  said  grand  jury  ever  considered 
of  the  matter  of  said  complaint,  or  of  said  charge  against  the  plaintiff. 
2.  Because  it  is  nowhere  averred  in  said  declaration  that  the  plaintiff 
had  a  trial,  or  was  otherwise  put  in  peril  before  the  justice  or  in  the 
Superior  Court.  3.  Because  neither  the  plaintiff's  discharge  by  the 
justice  of  the  Superior  Court  on  December  26,  1872,  nor  the  entry  of 
a  nolle  prosequi  by  the  district  attorney  on  December  24,  1873,  fully, 
effectually,  and  finally  terminated  the  prosecution  against  the  plain- 
tiff so  as  to  entitle  him  to  maintain  this  action."  The  Superior  Court 
sustained  the  demurrer,  and  entered  judgment  for  the  defendant ;  and 
the  plaintiff  appealed  to  this  court. 


234  GRAVES   V.   DAWSON.  [OHAP.  V. 

Lord,  J.  We  think  it  was  error  in  the  Superior  Court  to  sustain 
the  demurrer  in  this  case.  The  principal  ground  upon  which  it  is 
contended  that  the  demurrer  should  be  sustained  is  that  it  appears 
by  the  declaration  that  the  prosecution  claimed  to  have  been  malicious 
was  terminated  by  a  nolle  prosequi,  and  that  a  nolle  prosequi  is  not 
such  a  legal  termination  of  a  suit  as  the  plaintiff  is  required  to  show 
in  order  to  maintain  his  action  of  malicious  prosecution.  Parker  v. 
Farley,  10  Cush.  279,  is  relied  upon  in  support  of  this  proposition. 

That  case  has  been  so  many  times  referred  to  as  supporting  such 
doctrine  in  its  broadest  form,  and  thus  apparently  conflicting  with 
other  decisions  in  other  tribunals  and  within  our  own  jurisdiction, 
that  it  is  proper  to  examine  the  report  of  that  case,  and  see  how  far  it 
accords  with  or  differs  from  established  principles.  Upon  an  examina- 
tion of  that  case,  it  appears  that  nothing  was  decided  by  it  except  that, 
as  matter  of  law,  the  termination  of  a  prosecution  by  the  entry  of  a 
nolle  prosequi  was  not  necessarily  such  a  termination  of  the  suit  as 
entitled  a  defendant  to  maintain  an  action  for  malicious  prosecution. 
That  question  may  be  one  of  pure  law,  or  purely  of  fact,  or  it  may  be 
a  mixed  question  of  law  and  fact.  Parker  v.  Farley  was  not  heard 
upon  demurrer,  nor  upon  exceptions.  The  parties,  foreseeing  that 
certain  questions  of  law  which  might  be  decisive  of  the  case  would 
inevitably  arise  during  the  trial,  as  matter  of  convenience  and  econ- 
omy, agreed  to  present  those  questions  of  law  for  the  decision  of  the 
court  prior  to  the  trial  of  the  facts  before  a  jury,  and  to  accomplish 
this,  and  render  an  investigation  of  the  facts  unnecessary,  the  Chief 
Justice  of  this  court  made  a  formal  ruling,  b}''  consent  of  counsel,  that 
the  action  could  not  be  maintained,  and  reported  the  case  for  the 
decision  of  the  full  court.  In  order  to  present  such  questions  of  law, 
it  became  necessary  to  state  all  the  facts  in  relation  to  the  prosecution 
of  the  plaintiff,  tliat  the  court  might  see  whether  there  were  facts 
necessarily  conclusive  in  law  against  the  right  of  the  plaintiff  to 
recover. 

The  facts  thus  presented  were  substantially  these:  Farley,  one  of 
the  defendants,  made  complaint  against  Parker,  the  plaintiff,  of  hav- 
ing committed  the  crime  of  perjury.  Upon  this  complaint  an  indict- 
ment was  found  against  Parker,  and  upon  that  indictment  Parker 
was  tried  and  convicted  of  perjury  before  the  Court  of  Common  Pleas. 
During  such  trial,  exceptions  were  taken  by  him.  Those  exceptions 
wore  argued  before  this  court  and  overruled,  so  that  nothing  remained 
in  that  suit,  so  far  as  the  record  showed,  except  an  entry  of  judgment. 
Parker  thereupon  by  written  motion  and  affidavit  asked  for  a  new 
trial  of  the  case  because  of  newly  discovered  evidence,  and  this  motion 
was  allowed  and  a  new  trial  was  granted.  Subsequently  Parker  ap- 
plied to  this  court  to  compel  the  district  attorney  to  enter  a  nolle 
prosequi  in  the  suit,  because  of  an  agreement  to  that  effect,  and  some 
time  afterward  the  district  attorney  did  enter  a  nolle  prosequi,  and 


CHAP,    v.]  MALICIOUS   I'lJOSECUTION.  235 

no  further  proceedings  were  had  in  the  case,  and  the  prosecution  was 
thereby  terminated. 

The  mere  presentation  of  these  facts  shows  that  the  naked  question 
whether,  as  matter  of  law,  the  entry  of  a  nolle  prosequi  is  or  is  not 
such  a  termination  of  a  suit  as  authorizes  the  prosecuted  party  to 
maintain  an  action  for  malicious  prosecution,  was  not  raised.  It  is 
undoubtedly  true  that  the  Chief  Justice  was  inclined  to  the  opinion 
that  such  was  the  tendency  of  the  common-law  decisions;  yet  it  is 
obvious  that  it  was  not  necessary  for  him  to  consider  that  question, 
and  it  is  entirely  clear  that  he  did  not  consider  it;  for  he  says  ex- 
pressly, that,  if,  under  some  circumstances,  the  rule  be  that  a  nolle 
prosequi  is  tf  be  taken  to  be  the  final  termination  of  the  suit,  "  we 
should  be  of  opinion  that  it  would  not  apply,  when  a  nolle  prosequi 
and  discontinuance  is  entered  by  consent,  or  by  way  of  compro- 
mise, or  where  such  exemption  from  further  prosecution  has  been 
demanded  as  a  right,  or  sought  for  as  a  favor,  by  the  party  prosecuted. 
In  the  present  case,  it  appears  by  the  record,  that  the  plaintiff  en- 
deavored to  obtain  such  exemption  from  trial  by  requiring  the  district 
attorney  to  enter  a  nolle  prosequi." 

But  the  other  point  decided  in  Parker  v.  Farley  was  absolutely  deci- 
sive of  the  case.  A  jury  properly  empanelled,  under  correct  instruc- 
tions in  law,  had  found  the  plaintiff  guilty  of  the  crime  of  perjury. 
Upon  his  application  the  court  had  granted-  him  a  new  trial.  He 
never  had  a  new  trial,  he  did  not  desire  a  new  trial,  he  asked  to  have 
a  nolle  prosequi  entered,  he  applied  to  this  court  to  compel  the  dis- 
trict attorney  to  enter  it,  and  it  was  subsequently  entered;  and  upon 
that  state  of  facts  the  court  held  that  the  record  showed  conclusively 
probable  cause  for  the  prosecution,  and  consequently  that  no  action 
could  be  maintained  by  the  plaintiff.^  We  think,  therefore,  as  matter 
of  law,  it  cannot  be  said  that  the  entry  of  a  nolle  prosequi  is  conclusive 
upon  the  rights  of  a  party. 

The  authorities  upon  this  subject  are  carefully  collated  and  arranged 
by  the  present  Chief  Justice  of  this  court  in  Cardival  v.  Smith,  109 
Mass.  158,  and  the  result  of  all  those  authorities  is,  that  whether  a 
prosecution  has  been  so  terminated  as  to  authorize  the  party  prose- 
cuted to  commence  an  action  for  malicious  prosecution  is  to  be  deter- 
mined by  the  facts  of  the  particular  case  of  which  facts  the  entry 
of  a  nolle  prosequi  may  be  one  of  several,  may  be  the  only  fact,  may 
be  a  controlling  fact,  or  may  be  an  entirely  unimportant  one. 

We  have  discussed  this  question  thus  far  as  if  the  proceedings  in 
this  case  had  been  terminated  by  a  nolle  prosequi.  But  that  entry 
may  have  been  a  wholly  unimportant  and  immaterial  one,  or  indeed  an 
incompetent  fact.  The  plaintiff  avers  that  he  was  held  for  appear- 
ance before  the  Superior  Court  at  the  term  holden  on  the  third  Mon- 
day of  December,  1872,  and  that  authenticated  copies  of  the  complaint 

*  See  Adams  v.  Bicknell,  post,  p.  252. 


236  GRAVES    V.    DAWSON.  [CIIAP.   V. 

and  warrant  and  proceedings  thereon  were  entered  upon  the  docket 
of  that  court ;  and,  though  he  does  not  state  the  facts  chronologically 
in  his  declaration,  yet  he  does  state  the  fact  that  at  such  term  of  the 
court  the  grand  jury  found  no  bill  against  him,  and  that  on  the  26th 
day  of  December  he  was  discharged  from  custody  under  such  com- 
plaint by  order  of  the  Superior  Court;  and  it  has  been  repeatedly 
held  that  the  discharge  of  a  party  because  the  grand  jury  found  no  bill 
against  him  is  a  legal  end  to  the  prosecution.  See  cases  cited  in 
Cardival  v.  Smith,  ubi  supra.  The  plaintiff  avers  in  his  declaration 
that  this  complaint  was  entered  upon  the  docket  of  the  Superior 
Court  at  December  term,  1872,  and  avers  further  that  the  district 
attorney  at  the  corresponding  term  of  the  court  a  year  afterward  en- 
tered a  nolle  prosequi.  This  fact  may  or  may  not  be  important.  If, 
in  point  of  fact,  it  shall  appear  that  the  grand  jury  found  no  bill, 
and  by  reason  thereof  the  court  ordered  the  discharge  of  the  party  at 
the  same  term  of  the  court,  it  is  difficult  to  understand  what  legiti- 
mate results  would  follow  from  the  subsequent  entry  of  a  nolle 
prosequi,  or  how  the  rights  of  a  party  discharged  a  year  before  that 
entry  could  be  affected. 

It  is  sufficient  if  the  plaintiff  in  his  declaration  states  facts  upon 
which,  if  proved,  he  would  be  entitled  to  a  verdict.  We  think  he  has 
stated  such  facts  in  his  declaration.  Whether  when  he  offers  his 
proofs  it  shall  be  found  that  they  are  insufficient  in  law  or  in  fact 
to  support  his  allegations,  is  a  matter  into  which  we  cannot  inquire 
upon  this  demurrer. 

Demurrer  overruled.^ 


GEAYES   V.    SCOTT. 
Supreme  Court  of  Appeals  of  Virginia,  September,  1905.    104  Va.  372. 

The  case  is  stated  in  the  opinion. 

Keith,  President. 

This  is  an  action  for  malicious  prosecution,  in  the  Circuit  Court 
of  Giles  county,  in  which  the  defendants  demurred  to  the  declaration. 
The  only  question  raised  is  whether  or  not  it  is  sufficiently  averred 
that  the  prosecution  had  been  terminated,  which  was  alleged  to  have 
been  maliciously  instituted. 

It  seems  that  the  defendants  had  charged  Graves  with  having  pro- 
cured goods  and  chattels  of  them  under  false  pretences,  and  under 
a  warrant  issiiod  by  a  justice  he  was  arrested  and  entered  into  a  recog- 
nizance for  liis  appearance  before  the  justice  upon  a  day  named. 
When  the  day  arrived,  the  declaration  proceeds  to  set  forth,  that  "the 

->  See  s.  c.  133  Muss.  410. 


CHAP,    v.]  MALICIOUS   PROSECUTION.  237 

Baid  plaintiff  in  obedience  to  said  recognizance,  appeared  before  the 
said  justice  at  the  said  place  designated  for  trial,  and  had  with  him 
his  witnesses  to  prove  and  establish  his  innocence  of  the  said  supposed 
offence  charged  in  the  said  warrant  and  complaint,  and  announced 
his  readiness  for  a  trial  to  the  said  justice  and  to  the  said  Scotts,  and 
insisted  upon  a  trial  then  and  there,  but  the  said  defendants  refused 
and  declined  to  be  sworn  and  give  any  evidence  touching  the  sup- 
posed crime  charged  in  said  warrant  against  said  plaintiff,  and  failed 
to  offer  and  produce,  and  refused  to  offer  and  produce,  when  called 
upon,  any  evidence  whatsoever  to  prove  the  charge  in  said  warrant 
against  the  said  plaintiff,  and  then  and  there  the  said  justice  afore- 
said dismissed  the  said  warrant  at  the  costs  of  the  said  Scotts,  and 
then  and  there  caused  the  said  plaintiff  to  be  discharged  out  of  cus- 
tody, fully  acquitted  of  the  said  supposed  offence,  and  the  said  defend- 
ants have  not  further  prosecuted  the  said  complaint,  but  have  deserted 
and  abandoned  the  same,  and  the  said  complaint  and  prosecution  is 
now  fully  ended." 

The  demurrer  was  sustained,  and  a  writ  of  error  brings  the  case 
before  us  for  review. 

In  Ward  v.  Eeasor,  98  Va.  399,  this  court  held,  that  "  in  an 
action  for  malicious  prosecution  it  must  be  charged  and  proved, 
among  other  things,  that  the  prosecution  alleged  in  the  declara- 
tion was  conducted  to  its  termination,  and  that  it  ended  in  the  final 
acquittal  of  the  plaintiff.  An  allegation  that  an  offence  of  which  a 
justice  of  the  peace  had  jurisdiction  was  dismissed  by  him  '  without 
the  introduction  of  any  testimony '  or  that  the  defendant  '  without 
the  introduction  of  any  testimony '  caused  the  plaintiff  to  be  dis- 
charged, and  not  prosecuted  for  said  offence,  is  not  such  an  averment 
of  the  final  termination  of  the  prosecution  as  will  support  an  action 
for  malicious  prosecution.  It  amounted  to  no  more  than  a  nolle 
prosequi,  which  was  no  bar  to  a  further  prosecution  for  the  same 
offence.  It  did  not  establish  the  innocence  of  the  plaintiff,  or  show 
want  of  probable  cause  on  the  part  of  the  defendant." 

It  is  obvious,  therefore,  that  the  case  under  consideration  must  be 
affirmed  if  we  adhere  to  the  law  as  propounded  in  Ward  v.  Eeasor. 
The  conclusion  there  reached  is  supported  by  Hilliard  on  Torts,  by 
Greenleaf,  by  Mr.  Minor  in  his  Institutes,  by  Barton  in  his  Law 
Practice,  by  the  Supreme  Court  of  Massachusetts  in  Bacon  v.  Towne,^ 
4  Cush.  217,  and  by  a  dictum  by  Judge  Burks  in  Scott  &  Boyd  v. 
Shelor,  23  Graft.  891. 

The  opportunity  for  a  more  extensive  research,  and  a  further  con- 
sideration of  the  principles  involved,  have  led  us  to  a  different  con- 
clusion. 

It  is  true  that  public  policy  favors  prosecution  for  a  crime,  and 
requires  that  a  person  who  in  good  faith  and  upon  reasonable  grounds 

^  But  see  Graves   v.   Dawson,  ante,   p.   233. 


238  GRAVES    V.    SCOTT.  [CHAP.    V. 

institutes  proceedings  upon  a  criminal  charge  shall  be  protected.  19 
Am.  &  Eng.  Encyc.  of  Law,  p.  650. 

It  is  the  lawful  right  of  every  man  to  institute  or  set  on  foot  crim- 
inal proceedings  wherever  he  believes  a  public  offence  has  been  com- 
mitted. But  it  is  a  duty  which  every  man  owes  to  every  other  not 
to  institute  proceedings  maliciously  which  he  has  no  good  reason  to 
believe  are  justified  by  the  facts  and  the  law.  Newell  on  Malicious 
Prosecution,  sec.  1. 

The  difficulty,  therefore,  presented  is  to  protect  the  citizen  against 
criminal  proceedings  which  are  not  justified  by  the  facts  and  by  the 
law,  being  at  the  same  time  careful  not  unduly  to  deter  men  from  the 
institution  of  criminal  proceedings  honestly  intended  to  punish  public 
offences  against  the  law. 

To  meet  and  harmonize  these  difficulties  as  far  as  practicable,  the 
law  requires  that  the  plaintiff  in  an  action  for  malicious  prosecution 
must  avail  ^  and  prove  the  institution  of  the  suit  or  proceeding  without 
reasonable  cause;  malice  in  the  institution  of  the  suit  or  proceeding; 
and  the  complete  termination  of  the  suit  or  proceeding.  If  a  plain- 
tiff in  a  suit  for  malicious  prosecution  can  maintain  these  propositions 
to  the  satisfaction  of  a  jury,  he  may  and  should  recover  damages; 
nor  would  the  result  tend  to  deter  others  from  the  honest  and  fearless 
prosecution  of  offenders  against  the  law. 

In  Scott  &  Boyd  v.  Shelor,  supra,  Judge  Burks  states,  that  to  war- 
rant a  recovery  in  a  suit  for  malicious  prosecution  it  must  be  proved 
that  the  prosecution  alleged  in  the  declaration  had  been  set  on  foot 
and  conducted  to  its  termination.  Had  he  stopped  there,  he  would 
have  been  in  entire  harmony  with  the  law  as  stated  in  Newell  on 
Malicious  Prosecution ;  but  he  goes  further  and  says,  "  and  that  it 
ended  in  the  final  acquittal  and  discharge  of  the  plaintiff."  It  is 
true  that  in  the  case  which  Judge  Burks  was  considering  there  had 
been  a  final  acquittal  and  discharge  of  the  plaintiff,  and  it,  of  course, 
cannot  be  questioned  that  there  was  a  final  termination  of  the  prose- 
cution ;  but  that  case  cannot  be  binding  authority  for  the  proposition 
that  nothing  short  of  a  final  acquittal  constitutes  such  determination 
of  the  proceedings  as  will  support  an  action  for  malicious  prosecution. 

In  Morgan  v.  Hughes,  Durnf.  &  East's  Eep.,  vol.  2,  p.  225,  Justice 
Buller  says:  "Saying  that  the  plaintiff  was  discharged  is  not  suffi- 
cient ;  it  is  not  equal  to  the  word  '  acquitted,'  which  has  a  definite 
meaning.  Where  the  word  '  acquitted  '  is  used,  it  must  be  understood 
in  the  legal  sense,  namely,  by  a  jury  on  the  trial.  But  there  are  vari- 
ous ways  by  which  a  man  may  be  discharged  from  his  imprisonment, 
witliout  putting  an  end  to  the  suit.  If,  indeed,  it  had  been  alleged 
tliat  he  was  discliarged  by  the  grand  jury's  not  finding  tlie  bill,  that 
would  have  shown  a  legal  end  to  the  prosecution." 

Of  course,  if  in  Morgan  v.  Hughes,  it  had  been  averred  tliat  the 
plaintiff  was  acquitted,  it  would  have  been  sudlcii'iit,  as  in  Scott  & 

«8lo. 


CHAP.    V.J  MALICIOUS    PROSECUTION.  239 

Boyd  V.  Shelor,  supra;  but  it  was  held  that  "discharged"  was  not 
sufficient  averment  in  a  declaration  that  the  prosecution  had  termi- 
nated. If  it  had  been  alleged  that  he  was  discharged  by  the  grand 
jury  not  finding  a  bill,  that  would  have  been  a  legal  end  to  the  prose- 
cution and  would,  therefore,  have  been  sufficient  averment  of  the  legal 
termination  of  the  particular  proceeding  against  the  plaintiff  to  have 
warranted  the  institution  by  him  of  his  suit  for  malicious  prosecution. 

In  the  note  to  Eoss  v.  Hixon  (Kan.),  26  Am.  St.  Eep.  123,  by 
Freeman,  it  is  said,  that  "  The  prosecution  on  which  the  action  is 
based  must  have  terminated  without  resulting  in  the  conviction  of  the 
plaintiff.  It  is  sometimes  said  that  it  must  have  terminated  in  his 
acquittal,  but  this  is  not  true.  A  trial  on  the  merits  or  otherwise  is 
not  essential.  It  is  sufficient  that  the  prosecution  has  ended  so  that 
it  cannot  be  reinstated  nor  further  maintained  without  commencing 
a  new  proceeding,  but  it  must  have  terminated  in  some  of  the  several 
modes  in  which  it  is  possible  for  a  criminal  proceeding  to  reach  a 
stage  beyond  which  the  accused  cannot  be  further  prosecuted  therein." 
Citing  Casebeer  v.  Drahoble,  13  Neb.  465 ;  McWilliams  v.  Ho- 
ban,  42  Md.  56;  Blalock  v.  Kandall,  76  III  224;  Gillespie 
V.  Hudson,  11  Kan.  163;  Schippel  v.  Norton,  38  Kan.  567. 
Further  discussing  the  question,  he  speaks  of  a  discharge  by  a 
committing  magistrate,  and  says  that  "  if  the  examining  magistrate 
finds  that  there  is  not  sufficient  cause  to  hold  the  accused  to  answer, 
and  therefore  discharges  him,  that  prosecution  is  thereby  ended;  and 
the  consideration  that  other  prosecutions  may  be  brought  against  the 
same  person  on  the  same  charge,  and  that  the  grand  jury,  on  its 
presentation  to  them,  may  find  an  indictment  thereon,  cannot  prevent 
the  action  of  the  magistrate  from  having  its  effect  as  a  termination 
of  the  prosecution  before  him,  sufficient  to  support  the  civil  action." 
And  so  with  the  failure  of  a  grand  jury  to  find  an  indictment. 

With  respect  to  the  entry  of  a  nolle  prosequi,  he  says  that  "  if  some 
action  or  proceeding  on  the  part  of  the  court,  or  otherwise,  is  re- 
quired to  make  an  entry  of  nolle  prosequi  operative  as  a  final  ter- 
mination of  a  prosecution,  then  of  course  such  action  or  proceeding 
must  supplement  such  entry;  but  when  it  is  manifest  that  the  prose- 
cution is  at  an  end,  and  cannot  be  revived,  it  is  not  material  how  it 
came  to  its  end,  and  the  right  of  the  party  injured  by  it  to  seek  re- 
dress is  complete." 

And,  speaking  generally  as  to  other  means  of  terminating  a  prose- 
cution, this  learned  author  says :  "  The  only  reasonal)le  ground  for 
denying  that  the  termination  of  a  prosecution  by  the  entry  of  a  nolle 
prosequi  will  support  an  action  for  malicious  prosecution  was,  that 
there  had  been  no  trial  on  the  merits,  and  therefore  no  acquittal  of 
the  accused ;  but  it  is  settled,  as  we  think,  beyond  dissent  that  a  trial 
on  the  merits  is  not  essential.  To  hold  it  essential  would  be  to  permit 
a  prosecutor  to  do  all  the  damage  which  a  malicious  prosecution  can 


240  GRAVES    V.    SCOTT.  [CHAP.    V. 

possibly  effect,  and  then  deny  the  accused  the  opportunity  to  vindicate 
himself  by  a  trial,  by  having  the  proceeding  quashed  or  dismissed,  and 
thus  escaping  all  liability  for  the  wrong  unlawfully  inflicted.  There- 
fore, any  mode  by  which  a  prosecution  may  be  dismissed  or  ended, 
though  without  a  trial,  is  sufficient.  The  indictment  may  be  insuffi- 
cient, and  for  that  reason  may  be  quashed  before  trial,  or  upon  trial 
may  require  the  jury  to  return  a  verdict  of  acquittal.  In  either  event, 
if  the  accused  is  discharged  by  the  court,  the  prosecution  is  finally 
terminated  in  the  sense  that  an  action  for  malicious  prosecution  may 
be  instituted  and  sustained,  though  there  is  nothing  to  prevent  the 
finding  of  another  indictment  sufficient  in  form." 

This  statement  of  the  law  by  Mr.  Freeman  is  sustained  by  a  great 
array  of  authority,  which  we  deem  it  needless  to  discuss  or  cite. 

At  sections  248  and  249  of  Bishop  on  jSTon-Contract  Law,  it  is  said, 
that  "  if  on  motion  of  the  State's  attorney,  a  criminal  cause  is  stricken 
from  the  docket,  with  leave  to  reinstate  it,  the  defendant  is  not  dis- 
charged from  the  indictment,  and  a  suit  for  malicious  prosecution 
will  be  premature.  But  a  nolle  prosequi  ends  the  indictment  past 
recall,  and  thereupon  the  right  to  a  malicious  prosecution  suit  is  per- 
fected —  a  proposition  from  which  a  few  of  our  courts,  misappre- 
hending the  effect  of  a  nolle  prosequi,  have  dissented,  making  distinc- 
tions not  necessary  to  be  particularly  pointed  out  here. 

"  The  methods  of  ending  the  proceeding  are  numerous,  and  they 
need  not  be  all  specified.  It  is  sufficient,  for  example,  if  the  indict- 
ment is  quashed  and  the  prisoner  discharged  by  judgment  of  the  court. 
Only  the  particular  proceeding  need  be  at  an  end,  it  being  immaterial 
that  the  party  is  subject  to  a  new  one.  A  criminal  prosecution,  said 
a  learned  judge,  is  'terminated,  (1)  where  there  is  a  verdict  of  not 
guilty;  (2)  where  the  grand  jury  ignore  a  bill;  (3)  where  a  nolle 
prosequi  is  entered;  and  (4)  where  the  accused  has  been  discharged 
from  bail  or  imprisonment.'  Therefore  the  court  held  that  a  prosecu- 
tion was  not  ended  while  pending  before  the  grand  jury.  A  discharge 
by  the  examining  magistrate  will  suffice.  In  the  nature  of  some  pro- 
ceedings the  defendant  has  nothing  to  do,  and  whenever  the  plaintiff's 
steps  are  finished,  the  right  to  the  malicious  prosecution  suit  is  com- 
plete; 'as,'  it  was  judicially  observed,  'where  the  plaintiff  was  com- 
mitted on  articles  of  peace  for  a  definite  term  unless  he  should  find 
sureties  for  the  peace.  In  such  a  case  the  plaintiff  is  allowed,  ex 
necessitate  rei,  to  maintain  his  action,  though  he  was  discharged  by 
the  effluxion  of  tlio  time  for  wliich  he  was  committed,  for  the  reason 
that  he  is  not  at  liberty  to  controvert  the  statement  of  the  defendants 
in  making  the  complaint,  and  therefore  could  not  have  a  hearing  and 
obtain  a  favorable  decision.'  A  release  on  giving  surety  to  keep  the 
peace  is  a  BuHicicnt  ending  of  the  yjroceeding." 

To  the  same  effect  is  Cooley  on  Torts   (2  Ed.),  at  p.  215. 


CHAP,    v.]  MALICIOUS    PROSECUTION".  241 

It  would  be  easy,  but  we  think  unnecessary,  to  cite  very  many  ad- 
judicated cases  in  support  of  the  views  of  the  eminent  textwriters 
from  whom  we  have  quoted.  We  shall  content  ourselves  with  adding 
to  the  authorities  adduced  the  statement  of  the  law  as  given  in  19  Am. 
&  Eng.  Encyc.  of  Law,  p.  681,  "  that  a  prosecution  may  be  regarded 
as  terminated  when  it  has  been  disposed  of  in  such  a  manner  that  it 
cannot  be  revived,  so  that  the  prosecutor,  if  he  intends  to  proceed 
further,  must  institute  proceedings  de  novo." 

The  judgment  of  the  Circuit  Court  is  reversed. 

Reversed. 


DEIGGS   ih   BUETON. 

Supreme  Court   of  Vermont,  November,   1871.     44  Vt.   124. 

This  was  an  action  on  the  case  for  malicious  prosecution.  The 
general  issue  was  pleaded  and  the  case  was  tried  before  a  jury.  There 
was  evidence  for  the  plaintiff  that  on  July  22,  1868,  the  plaintiff  was 
arrested,  upon  complaint  made  by  the  defendant,  and  taken  before 
one  Hollenbeck,  a  justice  of  the  peace,  on  a  charge  that  the  plaintiff 
had  committed  perjury  by  giving  false  testimony  in  an  arbitration 
suit  between  the  defendant  and  one  Clark;  that  the  case  was  con- 
tinued to  July  23,  and  again  to  July  25,  at  the  request  of  the  State's 
attorney,  to  enable  him  to  procure  testimony;  that  on  the  25th,  the 
witnesses  not  appearing,  the  State's  attorney  entered  a  nolle  prosequi, 
and  no  hearing  was  had  upon  the  case  (this  appeared  by  the  justice's 
record).  It  seems  that  the  plaintiff's  counsel  suggested  to  the  State's 
attorney  that  it  was  hard  to  hold  the  plaintiff  so  long,  but  did  not 
otherwise  indicate  assent  to  the  entry  of  the  nolle  prosequi.  There 
was  also  evidence  of  the  activity  of  the  defendant  in  search  for  evi- 
dence to  be  used  against  the  plaintiff  in  the  criminal  action.  The 
plaintiff  admitted  that  he  had  testified  falsely  in  the  suit  between 
Clark  and  Burton,  but  claimed  that  he  did  so  innocently  and  in  mis- 
take. Evidence  was  admitted,  over  the  defendant's  objection,  that 
subsequent  to  the  trial  of  the  arbitration  action,  Clark  told  Driggs 
of  the  error  in  his  testimony  and  that  Driggs  was  not  at  first  fully 
satisfied,  but  finally  conceded  that  he  was  wrong. 

The  evidence  for  the  plaintiff,  further,  was  that  Driggs'  erroneous 
testimony  before  the  arbitrators  was  not  insisted  upon,  and  that  there 
was  laughing  among  the  counsel  (in  that  case)  about  it. 

The  evidence  of  the  defendant  was  that  he  believed  that  Driggs 
purposely  swore  falsely;  that  Clark  and  Driggs  both  had  suits  pend- 
ing against  him  and  that  he  had  been  told  by  a  certain  person  that 
one  Sowles  had  knowledge  of  complicity  between  Clark  and  Driggs  in 
reference  to  the  lawsuits,  and  that   after  procuring  the  complaint 


242  DEIGGS    V.   BURTON.  [CHAP.    V. 

against  the  plaintiff,  he  applied  to  Sowles  to  get  him  to  testify,  but 
that  Sowles  evaded  and  declined  to  testify;  that  he.  Burton,  had  no 
malice  against  Driggs. 

The  defendant  a^^ked  the  court  to  instruct  the  jury,  inter  alia,  that 
the  prosecution,  before  Justice  Hollenbeck,  having  terminated  in  a 
nolle  prosequi,  in  the  manner  stated,  there  was  not  such  a  determina- 
tion of  the  case  as  to  warrant  a  recovery  in  this  suit;  that  upon  the 
undisputed  facts  there  was  probable  cause  for  the  prosecution,  viz. : 
that  Driggs  did  swear  falsely  upon  a  material  point,  and  that  known 
to  Burton  to  be  false,  and  without  any  intimation  to  Burton,  from 
any  source,  that  Driggs  claimed  to  have  given  his  testimony  under 
a  mistake;   that  this  is  a  question  of  law  for  the  court  to  determine. 

The  court  declined  to  charge  as  requested,  (except  so  far  as  is 
contained  in  the  charge,  as  hereinafter  stated),  but  did  charge  the 
jury,  in  substance,  as  follows: 

That  the  disposition  of  the  prosecution  against  Mr.  Driggs,  by  the 
entry  of  a  nolle  prosequi,  was  such  a  termination,  under  the  circum- 
stances of  the  case,  as  would  allow  of  the  plaintiff's  recovery  in  this 
action,  provided  his  case  was  made  out,  in  other  respects,  according 
to  the  instructions  of  the  court. 

That  it  being  conceded  that  a  prosecution  was  instituted  against 
the  plaintiff  for  perjury,  on  which  he  was  arrested,  and  subsequently 
discharged  by  nol.  pros.,  and  that  it  was  set  on  foot  by  the  defendant, 
the  questions  to  be  considered  and  determined  by  the  jury  were 
whether  the  defendant,  in  so  doing,  acted  without  probable  cause  and 
maliciously,  and  that  it  was  for  the  plaintiff  to  establish  —  the  burden 
of  proof  being  on  him  —  to  the  satisfaction  of  the  jury,  that  the  de- 
fendant did  act  without  probable  cause  and  with  malice.  If  he  failed 
to  make  out  either  of  these  points  he  would  not  be  entitled  to  recover. 

That  probable  cause  meant  such  a  state  of  facts  and  circumstances 
as  would  induce  men  of  ordinary  prudence  and  conscience  to  believe 
the  charge  to  be  true;  whether  such  probable  cause,  as  thus  defined, 
existed  in  the  present  case,  was  for  the  jury  to  determine,  upon  a  care- 
ful review  of  all  the  evidence  in  the  case.  If  the  plaintiff  failed  to 
Katisfy  the  jury  that  the  defendant  acted  without  such  probable  cause, 
that  he  had  no  such  reason  to  believe,  and  did  not  believe,  the  plaintiff 
to  be  guilty,  then  the  case  is  at  an  end,  no  matter  what  the  defendant's 
motives  might  have  been.  Even  if,  from  malicious  or  bad  motives, 
he  instituted  a  prosecution  for  which  he  had  probable  cause,  the  plain- 
tiff would  not  be  entitled  to  recover,  nor  would  that  prove  a  want  of 
probable  cause.  If  the  jurv  are  satisfied  that  no  such  probable  cause» 
existed,  they  will  then  consider  the  question  whether  the  defendant  is 
shown  to  have  acted  maliciously. 

That  if  the  prosecution  was  instituted  without  probable  cause,  mal- 
ice may  then  be  in^jrrcd,  prima  facie.  '^Phe  inference  would  be,  if  noth- 
ing furtlier  appeared,  tliat  the  defendant's  coiuluct  was  malicious  and 


CHAP,    v.]  MALICIOUS    PROSECUTION.  243 

ill  bad  faith,  and  it  would  then  be  incumbent  on  him  to  show  that  he 
acted  in  good  faith  and  without  malice.  But  it  does  not  necessarily 
follow  that,  because  the  prosecution  was  started  without  probable 
cause,  it  was  done  maliciously.  It  may  still  have  been  in  good  faith 
and  without  malice.  Both  must  have  concurred;  and  the  question 
of  malice  is  for  the  jury  to  determine  upon  the  evidence,  under  the 
foregoing  instructions:  whether  the  defendant  had  probable  cause 
to  believe  in  the  charge,  and  whether  he  acted  maliciously,  are  ques- 
tions for  the  jury. 

That  if  the  defendant,  knowing  the  testimony  was  false,  believed  it 
was  knowingly  so,  that  would  be  probable  cause. 

The  jury  returned  a  verdict  for  the  plaintiff  and  the  defendant  took 
exceptions  to  the  court's  rulings  and  refusals  to  rule  as  requested. 

Wheeler,  J.  From  the  oral  evidence  received  without  objection 
and  not  contradicted,  it  appears  that  the  plaintiff  was  in  fact  dis- 
charged from  custody,  and  that  the  proceedings  against  him  before 
Justice  Hollenbeck  came  in  fact  to  an  end.  There  was  no  formal 
discharge  of  him  by  the  justice,  but  the  proceedings  that  were  had  in 
effect  discharged  him.  The  entry  made  by  the  justice  upon  his  files 
was  merely  nolle  prosequi  by  the  State's  attorney;  but  that  entry  was 
a  mere  memorandum,  made  by  the  justice,  by  which  to  write  out  the 
formal  record  of  the  proceedings  at  large.  The  full  record  would 
show  the  discharge  of  the  plaintiff  and  the  end  of  the  proceedings. 
Neither  the  form  of  the  memorandum  nor  the  want  of  a  full  record 
ought  to,  or  can,  vary  the  effect  of  what  was  done.  There  are  cases 
that  hold  that  the  entry  of  a  nolle  prosequi  by  a  prosecuting  attorney 
is  not  a  sufficient  termination  of  an  indictment  to  warrant  a  recovery 
for  a  malicious  prosecution  of  the  indictment,  and  that  nothing  short 
of  an  acquittal  upon  the  merits  would  be  sufficient  for  that  purpose. 
Where  the  entry  is  the  mere  act  of  the  prosecuting  attorney  and  no 
action  of  the  court  is  had  upon  it,  the  entry  would  not  be  an  end  of 
the  proceedings,  and  for  that  reason  would  not  warrant  any  action 
which  could  not  be  had  before  the  proceedings  were  at  an  end.  Upon 
proceedings  against  the  plaintiff,  Justice  Hollenbeck  could  neither 
acquit  nor  convict;  but  could  onh^  bind  over  or  discharge.  He  did, 
in  effect,  discharge  the  plaintiff ;  and  that  was  a  complete  termination 
of  that  prosecution,  and  as  favorable  a  one  as  could  be  had  for  the 
plaintiff.  Under  these  circumstances,  to  hold  that  the  prosecution 
was  at  an  end  far  enough  to  warrant  an  action  for  maliciously  prose- 
cuting it,  will  not  really  conflict  with  the  cases  alluded  to.  1  Am. 
Lead.  Cas.  222.  Upon  principle,  it  seems  that  the  termination  upon 
the  nolle  prosequi  of  the  State's  attorney,  under  these  circumstances, 
was  sufficient,  and  no  error  is  found  in  this  respect. 

It  is  urged  in  behalf  of  the  defendant  that  the  prosecution  came  to 
an  end  so  by  the  consent  of  the  plaintiff  as  to  defeat  this  action.  But, 
although  the  plaintiff  and  his  counsel  suggested  to  the  State's  attorney 


244  DRIGGS    V.    BURTON.  [CHAP.   V. 

that  it  was  rather  hard  to  hold  the  plaintiff  in  charge  any  longer, 
and  the  State's  attorney  thereupon  told  them  he  should  enter  a  nolle 
prosequi  the  next  morning,  —  and  did  so  —  still  it  does  not  appear 
that  the  suggestion  has  any  influence  with  either  the  defendant  or  the 
State's  attorney  with  reference  to  the  extent  to  which  the  prosecution 
should  be  pushed,  nor  that  the  defendant  did  not  proceed  with  the 
prosecution  regardless  of  any  wishes  of  the  plaintiff  so  far  as  the 
defendant  otherwise  saw  fit.  The  prosecution  does  not  appear  to  have 
been  ended  because  the  plaintiff  consented  to  a  termination  of  it,  but 
because  the  defendant  did  not  procure  the  necessary  witnesses,  and 
the  State's  attorney  chose  to  stop  it.  No  such  consent  appears  here 
as  would  be  necessary  to  affect  the  plaintiff's  right  of  recovery. 

The  testimony  as  to  what  the  plaintiff  said  when  informed  by  Clark 
of  the  production  of  the  letter  that  showed  his  testimony  before  the 
arbitrators  was  untrue,  was  quite  important  in  the  case  if  the  defend- 
ant knew  of  that  transaction.  The  right  of  the  plaintiff  to  recover 
depended  largely  upon  what  the  defendant  did  know  in  respect  to  all 
matters  connected  with  the  testimony  of  the  plaintiff,  and  upon  what 
the  defendant  believed  from  what  he  knew.  This  evidence  was  admis- 
sible and  proper  to  be  considered  for  the  purpose  for  which  the  court 
permitted  it  to  be  considered,  if  there  was  any  evidence  tending  to  show 
that  the  defendant  knew  of  the  facts  disclosed  by  it  and  the  jury 
found  such  knowledge  from  the  evidence;  and  if  there  was  no  such 
evidence  it  was  inadmissible ;  and  if  there  was  such  evidence  and  it  was 
insufficient  to  prove  the  knowledge  of  the  defendant,  it  was  not  proper 
to  be  considered.  That  there  was  no  direct  evidence  of  such  knowledge 
is  conceded  here  and  was  held  by  the  court  below.  Nash  v.  Doyle,  40 
Vt.,  96,  has  been  referred  to  as  an  authority  to  show  that  there  was 
some  circumstantial  evidence  of  such  knowledge  to  be  submitted  to  the 
jury.  That  was  a  prosecution  for  bastardy.  The  prosecutrix  had  been 
induced  to  make  oath  to  an  affidavit  that  a  person  other  than  the 
defendant  was  father  of  the  child,  by  unfair  means.  An  important 
question  was  whetlier  there  was  any  evidence  tending  to  show  that 
the  defendant  knew  what  means  were  used  or  not.  The  affidavit  was 
procured  by  the  defendant's  brother,  who  was  his  bail,  and  the  de- 
fendant's attorney;  and  the  defendant  made  use  of  the  fact  that  she 
had  made  such  an  affidavit  on  the  trial.  It  was  held  that  all  tliese  cir- 
cumstances together  were  sufficient  to  warrant  a  finding  of  knowledge 
of  tlie  transaction  on  the  part  of  the  defendant. 

Here  there  is  no  evidence  that  this  defendant's  attorneys,  or  any 
of  tliom,  knew  of  the  transaction  l)etwcon  the  plaintiff  and  Clark,  nor 
that  any  rr-lative  or  friend  or  agent  of  tlie  defendant's  knew  of  it. 
The  defendant  may  have  heard  of  it,  but  if  he  did,  no  one  testified 
to  any  fact  tliat  would  show  that  he  had  more  than  a  mere  conjecture. 
Such  a  conjecture  is  insufllcient  from  which  to  find  a  fact  to  found 


CHAP,    v.]  MALICIOUS    PROSECUTION.  245 

a  right  of  recovery  upon.  The  admission  of  this  evidence,  for  the 
purpose  and  use  made  of  it,  seems  to  be  error. 

In  the  charo^e  to  tlie  jury,  the  court  defined  probable  cause  accu- 
rately and  satisfactorily.  No  just  criticism  has  been,  or  could  be, 
made  of  the  definition.  After  givin?^  this  definition,  the  court  further 
charged  that,  whether  such  probable  cause  as  thus  defined  existed  in 
the  present  case,  was  for  the  jury  to  determine,  upon  a  careful  review 
of  all  tlie  evidence  in  the  case.  This  statement  of  the  duty  and  re- 
sponsibility of  the  jury  in  this  respect  was  not  afterwards  varied  in 
the  charge,  but  was  re-stated  several  times,  with  many  just  consider- 
ations as  to  the  application  of  it,  if  it  was  correct.  Afterwards,  in 
the  order  of  the  charge  as  stated  in  the  bill  of  exceptions,  the  jury 
were  instructed  that  if  the  defendant,  knowing  the  testimony  was 
false,  believed  it  was  knowingly  so,  that  would  be  probable  cause. 
This  proposition,  by  itself,  is  a  statement  of  what  in  law  would 
amount  to  probable  cause.  If  the  whole  charge  had  been  made  to 
conform  to  this  proposition,  and  the  right  of  the  plaintiff  to  recover 
had  been  made  to  depend  upon  whether  the  facts  contained  in  the 
proposition  existed  or  not,  there  would  have  been  no  error  in  law  as 
the  law  is  claimed  to  be  by  the  defendant's  counsel.  But  this  part 
of  the  charge  is  to  be  construed  with  what  preceded  it  upon  the  same 
subject,  and  in  connection  with  that,  the  jury  must  have  understood 
that  they  were  to  determine  the  defendant's  belief  with  reference  to 
the  definition  of  probable  cause  before  stated  to  them,  and  that  they 
were  to  decide,  not  only  upon  the  existence  of  the  facts,  but  whether 
upon  the  facts  they  should  find  to  have  existed,  there  was  probable 
cause  as  defined  by  the  court  or  not. 

What  constitutes  probable  cause  in  these  actions  is  a  question  of 
law  for  the  court.  All  inferences  to  be  drawn  from  facts,  undisputed 
or  found  by  the  jury  to  exist,  are  upon  this  subject  inferences  of  law 
and  not  of  fact,  and  are  to  be  drawn  by  the  court  and  not  by  the 
jury.  TJiis  rule  is  peculiar  to  this  class  of  actions,  and  has  been  long 
established,  and  is  well  founded  upon  sound  reasons  and  good  author- 
ity. Where  the  inference  to  be  drawn  from  existing  facts  is  one  of 
fact,  as  it  usually  is  in  questions  of  the  sufficiency  of  highways,  ordi- 
nary care,  and  the  like,  it  is  always  to  be  drawn  by  the  jury.  The 
cases  cited  upon  this  point  on  the  part  of  the  plaintiff  are  apt  illus- 
trations of  this  rule,  but  they  have  no  application  except  to  cases  of 
that  kind.  The  rule  upon  this  subject  as  to  the  existence  of  probable 
cause  was  adopted  as  early  as  actions  founded  upon  the  want  of  prob- 
able cause  were  brought  into  use,  and  has  never  been  relaxed.  In  the 
early  history  of  these  actions  it  was  customary  to  set  forth  the  facts 
in  the  defendant's  plea,  and  upon  demurrer  the  court  would  determine 
whether  there  was  probable  cause  or  not,  upon  the  facts  set  forth. 
Tindal,  Ch.  J.,  Panton  v.  Williams,  2  Ad.  &  EL,  N".  S.  192.  Where 
some  or  all  the  facts  were  in  dispute  the  existence  of  the  facts,  and 


246  DRIGGS    V.    BURTON.  [CHAP.    V. 

that  only,  was  submitted  to  the  jury.  The  early  authorities  seem  to 
be  uniform  to  this  effect.  There  are  some  cases  —  and  among  them  are 
Taylor  v.  Williams,  2  B.  &  Ad.  845,  and  Broad  v.  Ham,  5  Bing.,  722 
—  which  alone  might  seem  to  countenance  the  doctrine  that  the  whole 
evidence  and  all  inferences  to  be  drawn  from  it  were  to  be  submitted 
to  the  jury.  As  to  these  cases,  Ch.  J.  Tindal,  in  Panton  v.  Williams, 
2  Ad.  &  EL,  N.  S.,  169,  in  reviewing  one  of  the  decisions  of  Ch.  J. 
Denman,  said :  "  There  have  been  some  cases  in  the  later  books  which 
appear  at  first  sight  to  have  somewhat  relaxed  the  application  of  that 
rule  by  seeming  to  leave  more  than  the  mere  question  of  the  facts 
proved  to  the  jury;  but  upon  further  examination  it  will  be  found 
that  although  there  has  been  an  apparent,  there  has  been  no  real 
departure  from  this  rule."  And  he  proceeded  to  apply  the  rule  to  the 
decision  he  was  reviewing,  and  reversed  it.  In  Turner  v.  Ambler,  10 
Ad.  &  EL,  N.  S.,  252,  Lord  Denman,  Ch.  J.,  said,  in  granting  the 
rule :  "  A  rule  nisi  must  be  granted ;  but  it  is  not  to  be  presumed  that 
we  mean  to  question  the  doctrine  of  Panton  v.  Williams."  The  rule 
was  afterwards  stated  and  enforced  in  England,  in  Heslop  v.  Chap- 
man, 22  El.  &  E.,  296.  It  has  also  been  strictly  adhered  to  in  New 
York.  Pangborn  v.  Bull,  1  Wend.,  345 ;  Baldwin  v.  Weed,  17  Wend, 
224;  Bulkley  v.  Ketelas,  2  Seld.,  384.  And  also  in  Massachusetts. 
Kidder  v.  Parkhurst,  3  Allen,  393. 

In  practice  a  true  application  of  the  rule  seems  to  require  that  if 
none  of  the  facts  are  in  dispute,  the  question  of  probable  cause  arising 
upon  them  should  be  decided  by  the  court  as  a  question  of  law,  with- 
out the  intervention  of  the  jury  at  all.  That  if  some  of  the  facts  are 
undisputed,  and  others  are  in  controversy,  and  the  question  of  prob- 
able cause  cannot  be  determined  upon  the  undisputed  facts  without 
determining  the  existence  of  those  in  dispute,  then  the  case  should  be 
presented  to  the  jury  by  stating  which  of  the  disputed  facts  are  to  be 
passed  upon  and  how,  so  that  by  determining  the  mere  existence  or 
non-existence  of  them,  the  question  of  probable  cause  or  the  want  of 
it  will  be  determined,  according  to  the  view  of  them  in  law  taken  by 
the  court. 

This  charge,  in  the  view  taken  of  it,  did  not  conform  to  or  apply 
this  rule,  and  appears  to  be  erroneous.  Upon  the  rule  adopted  by  the 
court  below,  the  charge  was  very  careful,  and  manifestly  fair  and 
impartial,  but  these  qualities  cannot  cure  error,  although  they  would 
make  it  much  more  wholesome. 

Exception  was  taken  to  the  charge  upon  the  effect  of  want  of  prob- 
able cause  upon  the  question  of  malice.  Want  of  probable  cause  and 
malice  arc  each  essential  to  tlie  cause  oi  action,  and  each  must  be 
proverl,  and  proof  of  neither  will,  as  a  matter  of  law,  supply  proof  of 
the  other.  Tlio  same  facts  that  would  make  out  the  want  of  probable 
cause  in  many,  and  probably  in  most,  cases  would  tend  to  show  malice. 
In  cases  where  the  facts  would  have  that  tendency,  the  evidence  should 


CHAP,    v.]  MALICIOUS   TROSECDTION.  247 

be  submitted  upon  the  question  of  malice  independently,  and  that 
question  sliould  not  be  left  to  depend  upon  or  follow  the  finding  upon 
the  other.  Some  of  the  members  of  this  court  think  this  charge  upon 
this  subject  was  in  accordance  with  these  views ;  other  members  think 
it  was  not.  Since  the  judgment  must  be  reversed  upon  other  grounds, 
further  suggestions  upon  this  point  are  needless. 

Counsel  for  the  defendant  insist  that  this  court,  having  all  the  evi- 
dence before  it,  can  review  it  and  determine  the  question  of  the  want 
of  probable  cause  here.  The  evidence  now  before  the  court  shows 
that  the  plaintiff  swore  falsely,  and  that  the  defendant  knew  it.  These 
facts  are  undisputed.  If  false  swearing  was  perjury,  there  would  be 
probable  cause,  beyond  question,  for  the  defendant  would  know  that 
the  plaintiff  was  guilty.  But  a  great  deal  of  testimony  is  given  that 
is  false,  and  yet  is  not  perjury,  and  the  circumstances  are  such  that 
those  knowing  them  know  that  it  is  not.  And,  upon  the  same  circum- 
stances, some  persons,  owing  to  their  own  peculiar  relations  to  them, 
or  to  their  own  peculiarities  of  thought  and  judgment,  would  believe 
the  testimony  to  be  wilfully  false,  while  others,  differently  situated, 
or  with  different  views,  would  think  it  mistakenly  so.  Here  the  de- 
fendant, from  his  stand-point  and  with  his  views,  may  have  believed 
that  the  testimony  was  wilfully  false.  If  he  did,  then  upon  the  case 
as  it  is  now  presented,  that  belief,  in  connection  with  the  facts  that 
the  testimony  was  false,  and  he  knew  it  to  be  so,  would  amount  to 
probable  cause.  But  if  he  did  not  so  believe  in  fact,  and  the  plaintiff 
was  not  in  fact  guilty,  then  there  would  be  a  want  of  probable  cause. 
This  fact  of  the  actual  belief  of  the  defendant  is  an  important  one, 
and  upon  the  evidence,  cannot  be  determined  as  a  matter  of  law, 
either  one  way  or  the  other.  Therefore,  there  must  be  a  trial  by  jury 
to  determine  the  existence  of  this  fact,  as  the  case  now  stands,  and 
perhaps  others  in  connection  with  it,  or  not,  according  to  the  case  as 
it  may,  upon  another  trial,  be  presented.  As  the  case  stands,  it  must 
be  remanded  for  a  new  trial. 

Judgment  reversed,  and  cause  remanded. 


PEICE  V.  SEIBEET. 
Supreme  Court  of  Pennsylvania,  May,  1843.    5  W.  &  S.  438. 

This  was  an  action  against  the  defendant  for  a  malicious  prosecu- 
tion of  the  plaintiff  for  perjury.    The  court  thus  instructed  the  jury : 

"  The  jury  is  referred  to  the  testimony  of  Ulrich  and  Stine,  who  were 
present  when  the  plaintiff  was  examined  as  a  witness  before  the  jury 
in  the  matter  of  lunacy.    And  if  the  jury  are  satisfied  from  the  evi- 


248  PRICE   V.   SEIBERT.  [CHAP.    V. 

dence,  that  upon  that  occasion  George  Price,  the  plaintiff,  did  swear 
tliat  William  Seibert  was  called  and  examined  as  a  witness  for  his 
brother  Jacob  in  the  suit  between  him  and  Peter  Shoch,  and  per- 
sisted in  this  being  the  fact  according  to  the  testimony  of  Ulrich,  and 
if  you  are  satisfied  that  it  was  false  and  not  the  fact,  the  court  instruct 
you  that  Jacob  Seibert  had  probable  grounds  for  instituting  the  crim- 
inal proceedings  for  perjury  against  George  Price,  and  Jacob  Seibert 
is  not  answerable  in  damages  in  the  action  for  a  malicious  prosecu- 
tion, although  he  did  not  succeed  in  convicting  George  Price  of  the 
charge.  On  the  other  hand,  if  the  jury  are  satisfied  that  George  Price 
testified  before  the  inquest,  that  William  Seibert  was  a  witness  in  the 
suit  between  Peter  Shoch  and  Jacob  Seibert,  but  that  he  could  not  say 
which  party  called  on  him,  or  for  which  party  he  was  a  witness, 
according  to  the  evidence  of  Samuel  Lutz,  a  witness  called  by  the 
plaintiff  on  this  trial,  and  who  was  also  present  and  heard  George 
Price  give  evidence  before  the  jury  of  inquiry;  or  if  the  jury  are 
satisfied  that  George  Price  at  first  testified  that  William  was  a  witness 
for  his  brother  Jacob,  and  on  being  interrogated,  he  explained  by 
saying  he  did  not  know  for  which  party  he  was  a  witness,  and  only 
knew  he  was  a  witness  in  that  case;  then  the  court  instruct  you,  that 
Jacob  Seibert  had  no  probable  cause  for  prosecuting  Price  for  per- 
jury, and  is  answerable  to  him  in  this  action  for  a  malicious  prosecu- 
tion, and  malice  may  be  inferred.  In  actions  for  malicious  prosecu- 
tions, it  is  not  sufficient  that  it  is  established  to  the  satisfaction  of  the 
jury  that  the  criminal  prosecution  was  carried  on  with  malice,  but  it 
must  also  appear  that  there  was  a  want  of  probable  cause;  if  both 
these  facts  are  not  made  out  in  this  case,  the  plaintiff  is  not  entitled 
to  recover." 

The  plaintiff  proposed  to  send  out  with  the  jury  the  affidavit  (or 
information)  made  by  Jacob  Seibert  before  the  magistrate  when  he 
instituted  the  proceedings  against  the  plaintiff  for  perjury;  to  which 
the  defendant  objected,  but  the  court  overruled  the  objection  and 
sealed  an  exception. 

Gibson,  C.  J.  The  Judge  put  the  question  of  probable  cause  upon 
the  fact  of  what  the  plaintiff  had  actually  sworn  before  the  inquest, 
and  not  on  the  fact  of  wliat  he  was  supposed  to  have  sworn.  It  was 
a  matter  of  much  doubt  at  the  trial  of  tlie  present  cause,  whether  he 
had  said  that  the  alleged  lunatic  had  been  called  a  witness  in  Shoch 
V.  Seibert,  by  the  defendant,  or  not;  insomuch,  that  the  witnesses 
who  swore  positively  about  it  were  divided,  even  insomuch,  that  a 
majority  were  in  favor  of  the  affirmative.  In  this  conflict  of  percep- 
tion, then,  suppose  that  the  prosecutor  liad  acted  on  a  mistaken  belief 
that  the  plaintiff  had  sworn  what  would  undoubtedly  have  been  a  per- 
jury, would  he  not  have  acted  on  what  appeared  to  have  been  justifi- 
able cause;  and  if  he  did  so  act,  would  it  not  repel  the  implication  of 
malice?    Again,  if  the  same  misapprehension  was  entertained  by  the 


CHAP,    v.]  MALICIOUS    PROSECUTION.  249 

bystanders,  would  it  not  materially  increase,  in  an  indifferent  mind, 
the  probability  of  the  witness's  guilt?  What  is  justifiable  probable 
cause,  in  the  technical  sense?  It  is  a  deceptive  appearance  of  guilt 
arising  from  facts  and  circumstances  misa])preliended  or  misunder- 
stood so  far  as  to  produce  belief ;  ^  and  when  the  subject  of  belief  is 
the  crime  of  perjury,  the  misapprehension  may  have  regard  to  the 
extent  of  the  swearing,  as  well  as  the  truth  of  it.  The  question  of 
probable  cause,  may  as  well  depend  on  the  one  as  on  the  other,  the 
difference  being,  that  a  misapprehension  or  doubt  is  more  likely  to 
occur  in  regard  to  the  former  than  the  latter.  Still,  the  tenor  of  the 
testimony,  resting  as  it  does  in  the  understanding  and  memory  of  the 
hearers,  who  may  have  misapprehended  or  forgotten  it,  may  not  be 
accurately  perceived  by  the  prosecutor;  for  the  uncertainty  of  human 
perception  is  well  known  to  those  who  are  familiar  with  the  examina- 
tion of  facts  depending  on  oral  proof.  No  two  eye-witnesses  ever  yet 
exactly  agreed  in  their  account  of  a  transaction;  and  nothing  is  more 
frequent  than  the  misapprehension  of  a  person's  words.  A  by-stander 
relying  on  his  own  ears,  may  be  grossly  mistaken ;  and  when  the  mat- 
ter has  regard  to  the  sum  of  a  witness's  testimony  instead  of  the  truth 
of  it,  there  may  be  such  a  mistake  as  to  produce  an  appearance  of 
perjury  sufficient  to  justify  a  prosecution  of  it.  If,  then,  there  was  a 
reasonable  belief  in  the  minds  of  the  prosecutor  and  the  by-standers 
that  the  plaintiff  swore  to  what  it  is  admitted  would  have  been  an  un- 
truth, whether  the  belief  was  well  founded  or  not,  there  was  probable 
cause  amounting  to  justification. 

The  exception  to  the  sending  out  of  the  prosecutor's  affidavit  before 
the  magistrate,  is  not  sustained.  That  document  was  not  a  deposition, 
but  an  indispensable  part  of.  the  case  put  in  evidence  by  the  plaintiff 
himself;  and,  as  such,  it  does  not  fall  within  the  rule  which  excludes 
a  deposition  from  the  jury-room. 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


NOBLETT  V.  BAKTSCH. 
Supreme  Court  of  Washington,  January,  1903.    31  Wash.  24. 

The  case  is  stated  in  the  opinion. 

FuLLERTON,  C.  J.  This  is  an  action  for  malicious  prosecution. 
The  respondent  was  arrested  on  a  warrant  issued  by  a  magistrate 
charging  him  with  the  crime  of  bringing  stolen  property  into  this 
state  from  a  foreign  country,  and  confined  in  jail  for  about  one  week's 
time.  At  the  time  fixed  for  the  preliminary  hearing  he  was  discharged 
at  the  request  of  the  prosecution  without  examination  or  any  evidence 

1  That  is,  reasonable  belief.  See  Driggs  v.  Burton,  ante  p.  241  ;  Bigelow  on 
Torts,    8th    ed.,   p.   212. 


250  NOBLETT  V.    BARTSCH.  [CHAP.  V. 

being  brought  against  him.  The  property  which  he  was  charged  with 
having  brought  into  tlie  state  was  alleged  to  be  the  property  of  a  part- 
nership composed  of  the  appellants,  and  to  have  been  stolen  by  one 
G.  E.  Daniel,  at  Dawson,  in  the  Northwest  Territory,  where  Daniel 
had  been  connected  in  business  in  some  form  with  the  partnership. 
The  respondent  alleged  in  his  complaint  that  the  prosecution  was 
instituted  maliciously  and  without  probable  cause,  and  that  he  was 
damaged  thereby  in  the  sum  of  $50,000.  The  jury  returned  a  verdict 
in  his  favor  for  $1,000,  and  it  is  from  the  judgment  entered  thereon 
that  this  appeal  is  prosecuted. 

The  court  gave  to  the  jury  the  following  instructions:  "  (2)  In  an 
action  for  malicious  prosecution,  the  fact  that  the  plaintiff  was  dis- 
charged by  the  examining  magistrate  without  a  hearing  on  the  merits 
throws  the  burden  of  proving  probable  cause  on  the  defendants." 
"  (4)  The  dismissal  of  the  prosecution  alleged  in  the  complaint  with- 
out a  trial  is  competent  not  only  for  the  purpose  of  showing  an  end 
of  the  prosecution,  but  in  addition  it  establishes  a  prima  facie  case 
of  want  of  probable  cause,  and  throws  upon  the  defendants  the  burden 
of  proving  ^  that  there  was  a  want  of  probable  cause  for  the  prosecution 
of  the  plaintiff."  "  (8)  You  are  instructed  further  that  the  presump- 
tion exists  that  there  was  probable  cause,  and  that  the  defendants 
acted  without  malice  and  in  good  faith  in  instituting  the  criminal 
prosecution,  and  that  presumption  stands  until  the  plaintiff  shows 
by  a  preponderance  of  the  testimony  that  there  was  a  total  absence 
of  probable  cause,  and  that  the  prosecution  was  malicious ;  and  if  the 
plaintiff  has  failed  to  prove  to  your  satisfaction,  by  a  preponderance 
of  testimon}^,  the  total  lack  of  probable  cause,  and  malicious  institu- 
tion of  prosecution,  then  your  verdict  must  be  for  the  defendants. 
In  connection  with  this  instruction,  however,  I  charge  you  that  proof 
that  the  plaintiff  was  discharged  at  the  preliminary  hearing  without 
a  trial  on  the  merits  constitutes  prima  facie  proof  of  the  want  of 
probable  cause,  and  throws  the  burden  of  disproving  it  upon  the 
defendants." 

From  these  instructions  it  will  be  observed  that  the  trial  court  took 
the  view  that  the  showing  on  the  part  of  the  respondent  that  the 
prosecution  against  him  was  voluntarily  dismissed  cast  the  burden 
of  showing  probable  cause  therefor  upon  the  appellants.  Assuming 
that  a  voluntary  dismissal  is  equivalent  to  a  discharge  by  the  commit- 
ting magistrate,  there  are  cases  which  maintain  this  view.  Hidy  v. 
Murray,  101  Iowa  05;  Barhigbt  v.  Tammany,  158  Pa.  545;  Bigclow 
V.  Sickles,  80  Wis.  98;  Bornholdt  v.  Souillard,  30  La.  Ann.  103.  On 
the  other  hand,  there  arc  cases  which  hold  that  a  discharge  by  a 
committing  magistrate  is  not  even  evidence  of  want  of  probable  cause. 
Stone  V.  Crocker,  24  Pick.  84;^  Lancaster  v.  Langston  (Ivy.)  36 
S.  W.  521 ;    Isnicl  v.  Brooks,  23  111.  575;  Thompson  v.  Beacon  Valley 

*  sic-,   appnrpntly   a   bIIi»   for   rtlaprovlng. 
»Cf.   I'erklnB  v.   Siiaulding,   182  Mass.   218. 


CHAP,   v.]  MALICIOUS   PROSECUTION".  251 

Eubber  Co.,  56  Conn.  493;  Heldt  v.  Webster,  60  Tex.  207;  Apgar  v. 
Woolston,  43  N.  J.  Law,  57. 

Others,  again,  announce  the  rule  that  the  showing  of  a  discharge 
by  the  committing  magistrate  is  evidence  of  want  of  probable  cause, 
sufficient  to  make  a  prima  facie  case,  but  does  not  shift  the  burden 
of  proof.  Cooley  on  Torts,  184 ;  Lawson's  Rights,  Rem.  &  Prac,  sec. 
1084;  Eastman  v.  Monastes,  33  Or.  5>91;  Scott  v.  Wood,  81  Cal.  398; 
Vinal  V.  Core  and  Compton,  18  W.  Va.  1 ;  Rankin  v.  Crane,  104  Mich. 
6.    This  latter  is,  we  conceive,  the  correct  rule. 

Generally,  the  burden  of  maintaining  the  affirmative  of  the  issue 
involved  in  the  action  is  upon  the  party  alleging  the  fact  which  con- 
stitutes the  issue,  and  there  is  no  apparent  reason  for  making  an  ex- 
ception in  favor  of  actions  for  malicious  prosecutions,  more  particu- 
larly as  to  the  issue  now  in  consideration.  The  very  gist  of  an  action 
for  malicious  prosecution  is  want  of  probable  cause.  The  truth  of 
other  material  allegations,  such,  for  example,  as  malice,  may  be  in- 
ferred from  proof  of  want  of  probable  cause,  but  this  allegation,  being 
of  the  very  substance  of  the  issue,  must  be  substantially  and  expressly 
proved,  and  is  never  inferred  or  implied  from  the  proof  of  anything 
else.  We  think,  therefore,  that  the  burden  of  proving  this  issue 
remained  upon  the  respondent  throughout  the  trial,  and  that  the 
court  erred  in  charging  the  jury  to  the  contrary. 

The  court  refused  to  charge  the  jury  to  the  effect  that  one  partner 
is  not  liable  for  a  malicious  prosecution  instituted  by  his  co-partner, 
unless  he  advises,  directs,  or  participates  therein,  even  though  the 
prosecution  be  purported  to  be  instituted  for  some  wrongful  or  crim- 
inal act  with  relation  to  property  belonging  to  the  firm.  This  was 
error.  The  rule  is  that  a  partner,  as  such,  is  not  liable  for  a  malicious 
prosecution  instituted  by  his  co-partner  unless  committed  in  the  course 
of,  and  for  the  purpose  of  transacting,  the  partnership  business.  As 
a  prosecution  for  larceny  is  not  within  the  scope  of  a  business  of  a 
mercantile  partnership  (the  business  engaged  in  by  the  appellants), 
there  could  be  no  presumption  of  participation  by  all  of  the  partners, 
and  it  was  necessary  that  this  fact  be  proven.  Marks  &  Co.  v.  Hast- 
ings, 101  Ala.  165;  Gilbert  v.  Emmons,  42  111.  143;  Rosenkrans  v. 
Barker,  115  111.  331.  The  evidence,  however,  was  conflicting  on  the 
question  whether  or  not  all  of  the  appellants  participated  in  the 
prosecution,  and  the  jury  should  have  been  instructed  on  both  sides 
of  the  question. 

It  is  contended  that  the  court  erred  in  refusing  to  grant  a  non- 
suit in  favor  of  all  of  the  appellants.  This  is  based  on  the  claim  that 
the  appellants  fully  and  fairly  stated  all  of  the  facts  of  their  case  to 
the  prosecuting  attorney  of  King  county,  and  that  the  prosecution 
was  instituted  with  his  consent  and  ndvice.  The  trial  court  took  the 
view  that  there  was  such  a  substantial  dispute  in  the  evidence  as  to 
make  this  question  one  for  the  jury,  and  instructed  them  on  that 


252  ADAMS    V.    BICKNELL.  [CII^VP.    V. 

theory.  A  perusal  of  the  record  inclines  us  to  the  belief  that  the 
court  correctly  interpreted  the  evidence,  and  hence  we  find  no  error 
in  its  refusal  to  grant  a  nonsuit. 

The  judgment  is  reversed,  and  the  cause  remanded  for  a  new  trial, 
DcxBAR,  MocNT,  Hadlet,  and  Anders,  JJ.,  concur. 


ADAMS  V.  BICKNELL. 
Supreme  Court  of  Indiana,  November,  1890.     126  Ind.  210. 

The  case  is  stated  in  the  opinion. 

Olds,  C.  J.  This  is  an  action  for  a  malicious  prosecution.  The 
complaint  alleges  that  in  March,  1887,  the  appellee  instituted  before 
a  justice  of  the  peace  a  prosecution  against  the  appellant,  charging 
the  appellant  with  having  obstructed  a  public  highway  in  Sullivan 
county,  Indiana. 

It  appears  from  the  averments  of  the  complaint  that  the  appellant 
was  convicted  before  tlie  justice  of  the  peace,  and  he  took  an  appeal 
to  the  circuit  court,  and  was  acquitted  of  the  charge. 

The  complaint  contains  proper  averments  that  the  prosecution  was 
malicious  and  without  probable  cause,  but  there  are  no  averments  that 
the  conviction  before  the  justice  was  procured  by  perjury  or  subor- 
nation of  perjury  on  the  part  of  the  appellee,  or  by  fraud  or  collusion, 
or  any  improper  motives  on  the  part  of  the  justice. 

A  demurrer  was  sustained  to  the  complaint,  exceptions  reserved  to 
the  ruling,  and  the  ruling  of  the  circuit  in  sustaining  the  demurrer 
is  assigned  as  error. 

The  sole  question  presented  is  as  to  whether  the  complaint  is 
rendered  defective  on  account  of  its  showing  that  there  was  a  con- 
viction of  the  appellant  before  the  justice  of  the  peace. 

It  is  contended  by  counsel  for  appellee  that  the  fact  that  the  ap- 
pellant was  convicted  by  the  justice,  in  the  absence  of  averments  that 
such  conviction  was  procured  by  perjury  or  subornation  of  perjury  on 
the  part  of  the  appellee,  or  sJiowing  that  it  was  procured  by  fraud  or 
collusion  on  his  part,  rebuts  the  other  averments  of  malice  and  want 
of  probable  cause,  and  is  conclusive  evidence  of  probable  cause,  and 
exonerates  the  appellee  from  liability. 

On  the  other  hand  it  is  contended  by  counsel  for  appellant  that  the 
appeal  operated  to  vacate  the  judgment  before  the  justice,  and  the 
cause  came  up  in  tbe  fcircuit  court  for  a  trial  de  novo,  that  it  is  the 
same  as  if  a  new  trial  had  been  granted  by  the  justice,  and  hence  is  not 
conchisive  evidence  that  probable  cause  existed  for  instituting  the 
prosecution. 

Tbe  decisions  of  the  courts  are  not  uniform  upon  the  question  pre- 


CHAP,    v.]  MALICIOUS   PROSECUTION.  253 

sen  ted,  but  we  think  the  great  weight  of  authority  is  to  the  effect 
that  the  judgment  of  conviction  of  the  justice's  court,  thougli  appealed 
from,  and  an  acquittal  had  in  tlie  circuit  court,  is,  in  the  absence  of 
fraud,  conclusive  of  probable  cause. 

Cooley  Torts  (2d  ed.),  p.  185,  states  the  law  to  be:  "If  the  de- 
fendant is  convicted  in  the  first  instance  and  appeals,  and  is  acquitted 
in  the  appellate  court,  the  conviction  below  is  conclusive  of  probable 
cause." 

Stephen,  in  his  work  on  the  law  relating  to  Actions  for  Malicious 
Prosecution,  p.  101,  says:  "It  seems  probable  that  the  reversal  on 
appeal  of  a  conviction  is  not  a  termination  favorable  to  the  person 
convicted  upon  which  he  can  found  an  action  for  malicious  prosecu- 
tion. Reynolds  v.  Kennedy,  1  Wils.  232  (1748),  which  has  frequently 
been  quoted  as  an  authority,  was  an  appeal  from  the  Court  of  King's 
Bench  in  Ireland.  The  declaration  was  for  seizing  the  plaintiff's 
brandy,  and  '  falsely  and  maliciously '  exhibiting  an  informa- 
tion against  him  before  the  sub-commissioners  of  excise  for  not  having 
paid  duty  upon  it.  It  alleged  that  the  sub-commissioners  condemned 
the  brandy,  and  that  the  commissioners  of  appeal  '  most  justly  re- 
versed the  judgment  of  the  sub-commissioners.'  It  was  held  that  as 
to  the  information  before  the  sub-commissioners  the  declaration 
showed  a  foundation  for  the  prosecution,  and  that  as  to  the  appeal  '  we 
cannot  infer  from  the  judgment  of  reversal  of  the  commissioners  of 
appeal,  that  the  defendant,  the  prosecutor,  was  guilty  of  malice.' " 

In  Griffs  v.  Sellers,  8  Dev.  and  Bat.  Law,  492  (N.  C.)  (31  Am. 
Dec.  422),  a  well  reasoned  case,  it  is  held  that  where  there  were  a 
trial  and  conviction  in  the  county  court,  and  an  appeal  taken  to  the 
superior  court  where  the  defendant  was  acquitted,  it  was  conclusive 
of  probable  crime,^  and  that  the  defendant  in  such  case  could 
not  maintain  an  action  for  malicious  prosecution,  and  the  declara- 
tion was  held  bad  for  this  reason. 

In  the  case  of  Clements  v.  Odorless,  etc.,  Co.,  8  Central  Rep.,  p. 
901,  the  Supreme  Court  of  Maryland,  in  an  action  for  malicious 
prosecution,  where  there  had  been  a  judgment  in  favor  of  the  defend- 
ant, in  the  cause  upon  which  the  prosecution  was  based,  which  judg- 
ment had  been  reversed,  said :  "  It  was  the  deliberate  judgment  of  a 
court  of  competent  jurisdiction  that  there  was  not  only  a  probable 
cause  for  filing  the  bill  for  injunction,  but  that  the  appellee  was  en- 
titled to  the  relief  prayed.  A  judgment  thus  rendered  ought  to  be 
considered  conclusive  as  to  the  question  of  probable  cause,  although 
it  was  reversed  on  appeal  by  the  Supreme  Court ;  otherwise,  in  every 
case  of  reversal  an  action  would  lie  for  the  institution  of  the  original 
suit." 

Whitney  v.  Peckham,  15  Mass.  248,  is  a  case  directly  in  point;  the 
plaintiff  in  that  case  was  arrested  for  an  alleged  assault  and  battery, 

*  sic.  for  cause. 


254  ADAMS   V.    BICKNELL.  [CHAP.    V. 

and  tried  and  convicted  before  a  justice.  On  appeal  to  the  circuit 
court  of  common  pleas  he  was  acquitted.  The  Supreme  Court  held 
that  the  conviction  before  the  justice,  he  having  jurisdiction  of  the 
subject-matter,  was  conclusive  evidence  that  there  was  probable 
cause.  Parker  v.  Huntington,  2  Gray,  124;  Parker  v.  Farley,  10 
Cushing,  279. 

In  Bitting  v.  Ten  Eyck,  82  Ind.  421,  it  is  said  by  this  court :  "  The 
conviction  of  the  plaintiff  is  always  evidence  of  probable  cause,  unless 
it  was  obtained  chiefly  or  wholly  by  the  false  testimony  of  the  de- 
fendant; generally,  it  is  conclusive  evidence  of  probable  cause."  It 
is  further  said :  "  And  it  has  been  held  sufficient  evidence  of  probable 
cause  to  show  that  the  plaintiff  was  convicted  of  the  offence  before 
a  justice  of  the  peace  who  had  jurisdiction,  although  he  was  after- 
wards acquitted  on  an  appeal." 

These  decisions  are  in  accordance  with  other  holdings  in  regard 
to  the  law  governing  malicious  prosecutions. 

The  burden  of  proof  rests  upon  the  plaintiff,  in  such  cases,  to 
prove  the  want  of  probable  cause;  and  in  this  class  of  cases  it  has 
been  held  that  where  one  lays  all  the  facts  before  counsel,  and  acts  in 
good  faith  upon  an  opinion  given,  it  exonerates  him  from  liability. 

In  Cooley,  Torts,  p.  183,  Mr.  Cooley  says :  "  It  may  perhaps  turn 
out  that  the  complainant,  instead  of  relying  upon  his  own  judgment, 
has  taken  the  advice  of  counsel  learned  in  the  law,  and  acted  upon 
that.  This  should  be  safer  and  more  reliable  than  his  own  judgment, 
not  only  because  it  is  the  advice  of  one  who  can  view  the  facts  calmly 
and  dispassionately,  but  because  he  is  capable  of  judging  of  the  facts 
in  their  legal  bearings.  A  prudent  man  is  therefore  expected  to  take 
such  advice;  and  when  he  does  so,  and  places  all  the  facts  before 
his  counsel,  and  acts  upon  his  opinion,  proof  of  the  fact  makes  out 
a  case  of  probable  cause,  provided  the  disclosure  appears  to  have  been 
full  and  fair,  and  not  to  have  withheld  any  of  the  material  facts," 
and  this  doctrine  is  adhered  to  by  this  court,  and  is  distinctly  and 
clearly  stated  in  the  case  of  Paddock  v.  Watts,  116  Ind.  146,  151,  as 
follows : 

"  Where  one  lays  all  the  facts  before  counsel,  and  acts  in  good  faith 
upon  an  opinion  given,  he  is  not  liable  to  an  action,  even  though  it 
turns  out  that  he  was  mistaken.  But  in  order  that  he  may  obtain 
immunity,  he  must  have  made  a  full  and  fair  statement  of  all  the 
facts  known  to  him." 

When  the  question  arises  upon  the  evidence  it  is  usually  a  con- 
troverted fact  as  to  whether  the  defendant  did  make  a  full  and  fair 
statement  of  all  the  facts  known  to  him,  and  acted  in  good  faith  on 
the  opinion  given;  but  should  it  afTirmativcly  appear  in  a  complaint 
that  the  defendant  did  make  a  full  and  fair  statement  to  counsel,  and 
in  good  faith  acted  upon  an  opinion  given,  it  would  seem  that  it 
would  show  a  cai^o  of  prol)al)!c  cause  on  tlic  part  of  the  defendant, 


CHAP,   v.]  MALICIOUS   PKOSECUTION.  255 

and  render  the  complaint  insufficient  to  withstand  a  demurrer;  or  if 
such  a  state  of  facts  should  be  pleaded  as  a  defence,  it  would  be  good 
to  withstand  a  demurrer. 

If  it  be  a  good  defence,  then  it  destroys  the  plaintiff's  right  of  ac- 
tion when  it  is  fully  stated  in  his  complaint. 

One  of  the  reasons  upon  which  this  rule  is  based  is  that  when  the 
prosecuting  witness  acts  upon  facts  which  are  of  such  a  character  that 
when  they  are  stated  to  a  calm  and  dispassionate  person,  capable  of 
judging,  they  lead  him  to  conclude  the  person  charged  is  guilty, 
they  are  such  as  to  make  a  case  of  probable  cause  on  which  the  prose- 
cuting witness  has  the  right  to  act;  so  in  relation  to  a  case  like  the 
one  at  bar,  if  the  facts  are  such  as  lead  a  court  of  competent  jurisdic- 
tion to  try  the  offence,  to  act  upon  them  and  find  the  defendant 
guilty,  it  makes  out  a  case  of  probable  cause,  and  conclusively  exon- 
erates the  prosecuting  witness  from  liability,  although  an  appeal  may 
be  taken  and  an  acquittal  had  in  the  appellate  court. 

As  said  in  Paddock  v.  Watts,  supra,  "  Where  one  lays  all  the  facts 
before  counsel,  and  acts  in  good  faith  upon  an  opinion  given,  he  is 
not  liable  to  an  action  even  though  it  turn  out  that  he  was  mistaken." 

So  it  may  be  said  in  a  case  where  the  judgment  of  conviction  is 
appealed  from  and  an  acquittal  had.  If  the  prosecuting  witness 
presented  the  facts  to  one  court,  competent  to  try  the  cause,  and  the 
court  found  the  defendant  guilty,  it  makes  out  a  case  of  probable 
cause,  and  exonerates  him  from  liability  though  that  court  erred  in 
its  judgment.     This  is  undoubtedly  the  true  rule. 

It  is  the  duty  of  citizens  when  they  are  in  possession  of  facts 
which,  when  fully  and  fairly  presented  to  a  calm  and  dispassionate 
lawyer,  capable  of  determining  whether  such  facts  constitute  a  crime 
such  as  should  be  prosecuted  and  punished,  or  sufficient  when  pre- 
sented to  a  court  having  jurisdiction  to  try  the  offence,  to  lead  the 
court  to  act  upon  them,  and  find  the  defendant  guilty,  to  take  legal 
steps  for  the  punishment  of  such  offenders,  and  they  should,  when 
they  act  in  good  faith  upon  such  facts,  be  exonerated  from  any  liability 
in  an  action  for  malicious  prosecution. 

If  it  was  averred  or  shown  by  the  complaint  in  this  case  that  such 
conviction  had  been  procured  by  perjury  or  subornation  of  perjury 
on  the  part  of  the  appellee,  or  by  any  fraud  or  collusion  on  his  part, 
it  would  present  a  different  question,  but  it  contains  no  such  aver- 
ments. 

The  conclusion  we  have  reached  being  in  harmony  with  the  ruling 
of  the  circuit  court,  the  judgment  must  be  affirmed. 

Judgment  affirmed,  with  costs. 


256  OLMSTEAD  V.   PAETRIDGE.  [CHAP.   V. 

V 
OLMSTEAD  v.  PARTEIDGE. 

Supreme  Court  of  Massachusetts,  October,  1860.     16  Gray,  381. 

Action  of  tort  for  a  malicious  prosecution  by  making  a  complaint 
to  a  justice  of  the  peace,  charging  the  plaintiff  with  larceny  of  one 
hundred  sticks  of  wood,  upon  which  the  plaintiff  was  arrested  and 
tried  before  a  trial  justice  and  discharged. 

At  the  trial  in  the  Court  of  Common  Pleas  at  April  term,  1859, 
Aiken,  J.,  admitted  in  evidence,  against  the  defendant's  objection,  a 
certified  copy  of  the  record  of  the  proceedings  in  that  prosecution, 
without  calling  either  the  magistrate  who  received  the  complaint  and 
issued  the  warrant,  or  the  one  who  tried  the  case. 

The  defendant  called  the  justice  of  the  peace  to  whom  the  com- 
plaint was  addressed,  but  who  was  not  a  counsellor  or  attorney  at  law, 
and  offered  to  prove  by  him  that  the  defendant,  at  the  time  of  making 
the  complaint,  applied  to  him  for  advice  and  counsel,  and  stated  that 
she  had  caught  the  plaintiff  with  two  sticks  of  the  defendant's  wood 
in  her  arms.    But  the  evidence  was  objected  to  and  rejected. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendant 
alleged  exceptions. 

BiGELOW,  C.  J.  1.  The  copy  of  the  record  of  proceedings  before 
the  magistrate  was  not  only  competent,  but  it  was  the  only  proper 
and  legitimate  method  of  proving  the  essential  fact  of  the  institution 
of  the  prosecution.  Stone  v.  Crocker,  24  Pick.  87.  Sayles  v.  Briggs, 
4  Met.  421. 

2.  In  actions  for  malicious  prosecution,  it  has  been  held  to  be  com- 
petent for  the  defendant  to  prove,  in  order  to  establish  the  fact  of 
probable  cause,  that  in  prosecuting  the  plaintiff  on  a  criminal  charge 
he  acted  in  accordance  with  the  advice  of  counsel  on  a  full  and  correct 
statement  of  all  the  material  facts  bearing  on  the  case.  Hewlett  v. 
Cruchley,  5  Taunt.  277.  Ravenga  v.  Mackintosh,  2  B.  &  C.  693. 
Stone  V.  Swift,  4  Pick.  393.  But  such  testimony  has  always  been 
limited  to  communications  with  counsel  or  attorneys.  Statements 
made  to  otlier  persons  and  advice  given  by  them  have  never  been 
deemed  admissible.  The  law  wisely  requires  that  a  party  who  has 
instituted  a  groundless  suit  against  another  should  show  that  he  acted 
on  the  advice  of  a  person  who  by  liis  professional  training  and  experi- 
ence and  as  an  officer  of  the  court  may  l)e  reasonably  supposed  to  be 
competent  to  give  safe  and  prudent  counsel  on  which  a  party  may 
act  honestly  and  in  good  faith,  although  to  the  injury  of  another. 
But  it  would  open  the  door  to  great  abuses  of  legal  process,  if  shelter 
and  })rotection  from  the  cons(>quonces  of  instituting  an  unfounded 
prosecution  could  lie  obtained  by  proof  Hint  a  party  acted  on  tlie  irre- 
sponsible advice  of  one  who  could  not  l)e  presumed  to  have  better 


CHAP,    v.]  MALICIOUS    PROSECUTION.  257 

means  of  judging  of  the  rights  and  duties  of  the  prosecutor  on  a 
given  state  of  facts  than  the  prosecutor  himself. 

Exceptions  overruled. 


VANDERBILT  v.  MATHIS. 
Superior  Court  of  New  York  City,  February,  1856.    5  Duer,  304. 

The  plaintiff  complained  that  the  defendant  had  falsely,  mali- 
ciously, and  without  any  reasonable  or  probable  cause,  charged  him 
with  committing  perjury  in  a  certain  case  before  E.  E.  Stilwell,  a 
commissioner  of  the  United  States  for  the  Southern  District  of  New 
York,  whereupon  the  plaintiff  was  arrested  and  brought  before  said 
commissioner,  and  upon  examination  acquitted. 

The  errors  of  law  alleged  are  stated  in  the  opinion. 

BoswoRTH,  J.  To  maintain  an  action  for  malicious  prosecution, 
three  facts,  if  controverted,^  must  be  established:  1.  That  the  prosecu- 
tion is  at  an  end,  and  was  determined  in  favor  of  the  plaintiff.  2.  The 
want  of  probable  cause.  3.  Malice.  In  such  an  action  it  is  necessary 
to  give  some  evidence  of  the  want  of  probable  cause.  It  is  insufficient 
to  prove  a  mere  acquittal;  that,  alone,  is  not  prima  facie  evidence  of 
the  want  of  probable  cause.^     Gorton  v.  De  Angelis,  6  Wend.  418. 

It  is  equally  essential  that  the  former  prosecution  should  appear 
to  have  been  maliciously  instituted.  Malice  may  be  inferred  from 
the  want  of  probable  cause,  but  such  an  inference  is  one  which  a  jury 
is  not  required  to  make,  at  all  events  merely  because  they  may  find  the 
absence  of  probable  cause.  Unless  the  evidence,  in  relation  to  the 
circumstances  under  which  the  prosecution  was  ended,  and  that  given 
to  establish  the  want  of  probable  cause,  justify  the  inference  of  malice, 
other  evidence,  in  support  of  it,  must  be  given.  Evidence  as  to  the 
conduct  of  the  defendant,  in  the  course  of  the  transaction,  his  declara- 
tions on  the  subject,  and  any  forwardness  and  activity  in  exposing  the 
plaintiff  by  a  publication,  are  properly  admitted  to  prove  malice. 
Such  evidence  must  be  given  as  will  justify  a  jury  in  finding  the 
existence  of  malice.  The  rule  is  uniformly  stated,  that,  to  maintain 
an  action  for  a  former  prosecution,  it  must  be  shown  to  have  been 
without  probable  cause,  and  malicious.  Vanduzer  v.  Linderman,  10 
Johns.  R.  106;  Murray  v.  Long,  1  Wend.  1-40;  2  Stark.  Ev.  494; 
Willans  v.  Taylor,  6  Bing.  183. 

The  judge,  at  the  trial,  charged  that  the  fact  that  the  plaintiff  was 
discharged  before  the  magistrate  showed,  prima  facie,  that  there  was 
no  probable  cause  for  the  arrest,  and  shifted  the  burden  of  proof 
from  the  plaintiff  to  the  defendant,  who  was  bound  to  show  affirma- 

1  The  words   "  if  controverted  "  are  used  here  inadvertently,  it  seems. 

2  See  Noblett   r.  Bartsch,   ante,  p.  249. 


258  VANDERBILT    V.    MATHIS.  [CHAP.    V. 

tively  that  there  was  probable  cause.  He  was  requested  to  charge 
"  that  the  discharge  of  Vanderbilt  was  not  prima  facie  evidence  of 
the  want  of  probable  cause."  This  he  refused  to  do.  To  this  refusal 
to  charge,  and  to  the  charge  as  made,  the  defendant  excepted. 

He  also  charged  "that,  if  probable  cause  is  made  out,  the  question 
of  malice  becomes  immaterial,  except  as  bearing  on  the  question  of 
damages."  "  This  question  of  malice  in  fact,  supposing  that  probable 
cause  did  not  exist,  is  material  only  as  affecting  the  question  of  dam- 
ages." He  was  requested  to  charge  "that  the  jury  could  not  find  a 
verdict  for  the  plaintiff,  unless  he  has  proved  that  there  was  no 
probable  cause  for  the  complaint,  and  not  even  then,  unless  they 
believe,  from  the  evidence,  that,  in  making  the  complaint,  the  de- 
fendant acted  from  malicious  motives."  This  the  judge  declined  to 
do,  and  to  his  refusal  so  to  charge  the  defendant  excepted. 

Although  the  evidence  which  establishes  the  want  of  probable  cause 
may  be,  and  generally  is,  such  as  to  justify  the  inference  of  malice, 
yet  we  understand  the  rule  to  be,  that  when  it  is  a  just  and  proper 
inference  from  all  the  facts  and  circumstances  of  the  case,  upon  all 
the  evidence  given  in  the  cause,  "  that  the  defendant  was  not  actuated 
by  any  improper  motives,  but  only  from  an  honest  desire  to  bring  a 
supposed  offender  to  justice,  the  action  will  not  lie,  because  such 
facts  and  circumstances  disprove  that  which  is  of  the  essence  of  the 
action,  viz.,  the  malice  of  the  defendant  in  pressing  the  charge." 

In  Bulkeley  v.  Smith,  2  Duer,  271,  the  court  stated  the  rule  to  be, 
"  that,  in  order  to  maintain  a  suit  for  a  malicious  prosecution,  the 
plaintiff  is  bound  to  prove  the  entire  want  of  a  probable  cause  for  the 
accusation,  and  the  actual  malice  of  the  defendant  in  making  it. 
Malice  is  a  question  of  fact,  which,  when  the  case  turns  upon  it,  must 
be  decided  by  the  jury."  Story,  J.,  in  Wiggin  v.  Coffin,  3  Story,  1, 
instructed  the  jury  that  two  things  must  concur  to  entitle  a  plaintiff 
to  recover  in  such  an  action.  "  The  first  is,  the  want  of  probable  cause 
for  the  prosecution;  the  second  is,  malice  in  the  defendant  in  carry- 
ing on  the  prosecution.  If  either  ground  fail,  there  is  an  end  of  the 
suit."  In  Vanduzer  v.  Linderman,  10  Johns.  R.  106,  the  court  said: 
"  No  action  lies  merely  for  bringing  a  suit  against  a  person  without 
sufficient  ground.  To  maintain  a  suit  for  a  former  prosecution,  it 
must  appear  to  have  been  without  cause  and  malicious." 

If  the  charge  must  be  understood  to  mean,  that  if  the  want  of  prob- 
able cause  was  established,  the  plaintiff  was  entitled  to  recover,  al- 
though the  jury  should  believe,  from  the  whole  evidence,  that  in  mak- 
ing the  complaint  the  defendant  dirl  not  act  from  malicious  motives, 
then  we  deem  it  to  be  erroneous.  This  construction  is  the  only  one 
of  which  the  language  of  the  instruction  appears  to  be  susceptible; 
for  the  juflgo,  in  charging  the  jury,  stated  that  the  "  question  of 
malifo  in  fact,  supposing  IJiat  probable  cause  did  not  exist,  is  material 
only  as  affecting  the  question  of  flamagcs." 


CHAP,    v.]  MALICIOUS    PROSECUTION.  259 

Malice  in  fact  is  that  kind  of  malice  which  is  to  be  proved.  "When 
malice  may  be  and  is  inferred  from  the  want  of  probable  cause,  it  is 
actual  malice  which  is  thus  proved.  There  is  no  theoretical  malice 
which  can  satisfy  this  rule,  and  which  can  coexist  with  the  established 
fact,  tbat  the  prosecution  was  instituted  in  an  honest  belief  of  the 
plaintiff's  guilt,  and  with  no  other  motives  than  to  bring  a  supposed 
offender  to  justice.  The  question  of  malice  may  be  a  turning-point 
of  the  controversy,  in  an  action  of  this  nature. 

The  want  of  probable  cause  may  be  shown,  and  yet  upon  the  whole 
evidence  in  any  given  case  it  may  be  a  fair  question  for  the  determina- 
tion of  a  jury,  whether  the  defendant  was  actuated  by  malice.  If  the 
whole  evidence  is  such  that  a  jury  cannot  properly  doubt  the  honesty 
and  purity  of  the  motive  which  induced  the  former  prosecution,  and 
if  they  fully  believe  that  it  was  instituted  from  good  motives,  and 
in  the  sincere  conviction  that  the  plaintiff  was  guilty  of  the  offence 
charged,  and  without  malice,  the  defendant  would  be  entitled  to  a 
verdict. 

The  charge  made,  and  which  was  excepted  to,  must  be  deemed  to 
have  been  made  to  give  the  jury  a  rule  of  action,  in  disposing  of  the 
case  upon  the  whole  evidence.  We  think  it  was  not  only  calculated 
to  mislead,  but  was  erroneous. 

A  new  trial  must  be  granted,  with  costs  to  abide  the  event. 


EASTIN  V.  BANK  OF  STOCKTON". 

Supreme  Court  of  California,  November,   1884.     66  Cal.   123. 

The  case  is  stated  in  the  opinion. 

Ross,  J.  The  cause  of  action  set  forth  in  the  complaint  is,  that  in 
the  month  of  August,  1874,  the  plaintiff  executed  to  the  firm  of  J.  H. 
Barney  &  Co.  his  two  certain  promissory  notes  —  one  for  the  sum 
of  $160,  and  the  other  for  the  sum  of  $311  —  which  notes  he  paid  in 
December  of  the  same  year  at  the  Bank  of  Stockton,  with  the  knowl- 
edge of  the  president,  cashier  and  managing  agent  of  the  bank;  that 
after  the  notes  had  been  so  paid  and  had  been  delivered  up,  plaintiff 
lost  them;  and  the  bank,  by  some  means  to  the  plaintiff  unknown, 
became  possessed  of  them ;  that  thereafter,  and  in  the  year  1876,  the 
bank  and  its  co-defendant,  Hogan,  entered  into  a  conspiracy  for  the 
purpose  of  blackmailing  plaintiff,  and  extorting  money  from  him  by 
means  of  the  possession  of  the  notes  and  the  supposed  inability  of  the 
plaintiff  to  produce  evidence  of  their  payment,  and  that  it  was  agreed 
and  understood  between  the  bank  and  Hogan  that  each  should  receive 
an  equal  part  of  whatever  money  they  might  succeed  in  extorting  from 
the  plaintiff,  and  that  each  should  bear  an  equal  part  of  the  expenses 
incurred  in  carrying  out  the  conspiracy;    that  in  pursuance  of  the 


260  EASTIN   V.   BANK   OF    STOCKTON.  [CHAP.   V. 

conspiracy,  defendants,  on  the  6th  of  August,  1878,  wilfully,  mali- 
ciously, and  without  reasonable  or  probable  cause,  and  with  intent  to 
vex,  harass  and  injure  the  credit  of  plaintiff,  and  to  put  him  to  cost 
in  and  about  his  defence,  or  to  compel  him  to  submit  to  their  extor- 
tionate demands,  commenced  an  action  in  the  district  court  of  the 
Fifth  Judicial  District  of  the  State  of  California,  for  the  recovery  of 
the  sums  for  which  the  notes  had  been  given,  but  which  defendants 
at  the  time  well  knew  had  been  fully  paid ;  that  process  in  that  action 
was  served  on  the  present  plaintiff,  who  was  obliged  to  employ  counsel 
to  defend  the  suit  at  a  cost  of  $600,  and  to  incur  a  further  expendi- 
ture in  defence  thereof  of  $75 ;  that  by  reason  of  the  commencement 
and  prosecution  of  that  action  the  plaintiff  was  damaged  in  the  further 
sum  of  $5,000,  by  way  of  injury  to  his  credit,  neglect  of  his  business, 
etc. ;  that  the  action  resulted  in  a  judgment  for  the  then  defendant 
—  plaintiff  here. 

The  answer  of  the  defendants  put  in  issue  the  material  averments 
of  the  complaint,  and  a  trial  was  had  with  a  jury,  resulting  in  a  ver- 
dict for  the  plaintiff  for  the  sum  of  $3,000 ;  and  judgment  was  entered 
against  tJie  defendants  for  that  sum  and  costs. 

A  large  number  of  objections  were  taken  by  the  defendants  to  the 
proceedings  in  the  court  below  —  among  them  exceptions  to  the  giv- 
ing and  the  refusal  to  give  certain  instructions  to  the  jury.  The 
instructions  given  were  erroneous  in  several  particulars.  In  several 
instances  the  jury  was  told,  in  effect,  that  it  was  for  them  to  decide 
whether  or  not  there  was  probable  cause  for  the  prosecution  of  the 
suit  against  the  plaintiff.  Thus,  the  court  told  the  jury :  "  If,  from 
the  evidence,  you  find  that  in  the  instituting  of  the  suit  of  the  Bank 
of  Stockton  V.  Eastin  there  was  no  probable  cause,  and  that  the  de- 
fendants were  actuated  by  malice,  either  actual  or  implied,  then  I 
charge  you  that  in  assessing  the  damages  sustained  by  Eastin,  you 
are  not  limited  to  the  actual  amount  paid  out  or  expended  by  him," 
etc.  Again,  the  jury  was  told :  "  If  the  facts  offered  to  show 
a  want  of  probable  cause  are  undisputed,  it  is  the  sole  province  of  the 
court  to  determine  whether  or  not  such  evidence  establishes  a  want 
of  probable  cause,  and  in  that  case  the  jury  would  have  nothing  to 
do  with  the  matter.  If,  however,  the  facts  are  disputed,  then  it  be- 
comes your  duty  first  to  determine  what  are  the  facts  proven,  and 
next,  under  the  instructions  of  the  court,  to  see  whether  those  facts 
constitute  a  want  of  prohahle  cause.  Now,  in  this  case,  that  is  a  dis- 
puted proposition,  and  unless  you  find  affirmatively  from  the  testi- 
mony that  there  was  a  want  of  probable  cause  in  the  institution  of  the 
suit  of  the  Bank  of  Stockton  v.  Eastin,  tlien  you  must  find  for  the 
dcfonflants."  Continuing,  the  court  said:  "In  determining  whether 
or  not  there  was  a  want  of  probable  cause  in  the  bringing  of  that 
Buit,  the  court  calls  your  attention  particularly  to  the  fact  which, 
in  its  judgment,  will  determine  that  question  either  one  way  or  the 
other." 


CHAP,    v.]  MALICIOUS   PROSECUTION.  261 

It  is  quite  clear  that  by  these  instructions  the  court  left  it  with 
the  jury  to  say  whether  or  not  there  was  probable  cause  for  the 
bringing  of  the  suit  against  the  plaintiff.  In  doing  so,  the  court 
committed  to  the  jury  more  than  it  was  their  legitimate  province  to 
determine,  as  was  held  in  Grant  v.  Moore,  29  Cal.  6.52,  and  where 
this  court  said :  "  The  law  makes  it  the  duty  of  the  judge  who 
tries  an  action  for  malicious  prosecution,  to  instruct  the  jury  that  as 
they  may  find  and  determine  certain  questions  of  fact,  properly 
submitted  to  them,  to  be  true  or  untrue,  so  must  be  their  verdict 
for  the  plaintiff  or  tlie  defendant;  not  that  they  should  determine 
the  question  of  the  want  of  probable  cause,  or  the  contrary." 

The  court  below  also  erred  in  instructing  the  jury,  as  it  did,  that 
in  the  event  of  their  finding  a  verdict  for  the  plaintiff,  it  would  be 
their  duty  to  allow  him  all  that  he  paid  out  and  expended  in  the 
defence  of  the  former  suit,  "both  counsel  fees  and  all  other  expenses 
paid  out  by  him,"  without  reference  to  whether  such  counsel  fees 
and  other  expenses  were  reasonable  and  proper  or  not.  Under  no  cir- 
cumstances would  plaintiff  be  entitled  to  recover  extravagant  and  un- 
necessary fees  and  expenses. 

As  the  case  must  be  sent  back  for  a  new  trial,  it  is  proper  to 
decide  another  question  raised,  and  that  is,  whether  in  this  State  an 
action  can  be  maintained  for  the  malicious  prosecution  of  a  civil  ac- 
tion, in  which  no  process  other  than  the  summons  was  issued.  The 
weight  of  the  authorities,  American  as  well  as  English,  is  against 
the  maintenance  of  such  an  action;  and  so  are  most  of  the  text- 
writers.  The  question  has  never  been  determined  in  this  State,  and 
we  are,  therefore,  at  liberty  to  adopt  the  rule  that  we  think  is  founded 
on  the  better  reason.  The  point  was  made  in  the  case  of  Smith  v. 
George,  52  Cal.  344,  but  was  not  decided,  the  Court  holding  that  it 
was  unnecessary  to  decide  it,  but  remarking  that  "  the  adjudged 
cases  in  England  and  America  are  conflicting  upon  the  question,  and 
depending  to  a  considerable  degree,  it  would  seem,  upon  the  pre- 
vailing statutory  provisions  as  to  the  recovery  of  costs  by  the  de- 
fendant upon  the  termination  of  a  civil  action  in  his  favor."  The 
cases  are  collected  and  reviewed  by  Mr.  Lawson,  in  an  instructive 
article  upon  the  subject,  published  in  the  American  Law  Eegister,  and 
which  will  be  found  in  the  21st  vol.,  at  pages  281-353.  Tlie  cases 
are  too  numerous  to  be  here  referred  to  in  detail.  The  English 
cases  which  deny  the  right  to  maintain  the  action,  stand  upon  the 
ground  that  the  successful  defendant  is  adequately  compensated 
for  the  damages  he  sustains  by  the  costs  allowed  him  by  the  statute. 
Those  costs,  it  seems,  include  the  attorney's  charges  for  preparing  the 
case  for  trial  in  all  its  parts,  the  fees  of  the  witnesses  and  the 
court  officials,  and  even  the  honorarium  of  the  barrister  who  con- 
ducted the  case  in  court.  The  reason  upon  which  the  English  rule 
rests  would  not,  therefore,  seem  to  apply  here,  where  the  costs  re- 


262  EASTIN    V.    BANK   OF    STOCKTON.  [CHAP.   V. 

coverable  under  the  statute  are  confined  to  much  narrower  limits. 
Under  our  system  the  defendant  may  be  subjected,  or  he  may  subject 
himself,  to  expenses  not  recoverable,  even  if  the  suit  terminates  in. 
his  favor ;  but  of  this  he  has  no  legal  ground  to  complain  when  the 
suit  is  brought  and  prosecuted  in  good  faith,  because,  as  said  in 
Closson  V.  Staples,  42  Vt.  209,  "  it  is  the  ordinary  and  natural  con- 
sequence of  a  uniform  and  well-regulated  system,  to  which  all  parties 
in  civil  actions  are  required  to  conform.  But  when  the  action  is 
brought  and  prosecuted  maliciously,  and  without  reasonable  or  prob- 
able cause,  the  plaintiff  asserts  no  claim  in  respect  to  which  he  had 
any  right  to  invoke  the  aid  of  the  law.  In  such  cases  the  plaintiff, 
by  an  abuse  of  legal  process,  unjustly  subjects  the  defendant  to  dam- 
ages which  are  not  fully  compensated  by  the  costs  he  recovers.  The 
plaintiff,  in  such  case,  has  no  legal  or  equitable  right  to  claim  that 
the  rule  of  law  which  allows  a  suit  to  be  brought  and  prosecuted 
in  good  faith  without  liability  of  the  plaintiff  to  pay  the  defendant 
damages,  except  by  way  and  to  the  extent  of  the  taxable  costs,  if 
judgment  be  rendered  in  his  favor,  should  extend  to  a  case  where  the 
suit  was  maliciously  prosecuted  without  probable  cause.  But  where 
the  damages  sustained  by  the  defendant  in  defending  a  suit  maliciously 
prosecuted  without  reasonable  or  probable  cause  exceed  the  costs  ob- 
tained by  him,  he  has,  and  of  right  should  have,  a  remedy  by  action 
on  the  case." 

Two  other  objections  made  to  the  maintenance  of  the  action  —  first, 
the  claim  that  if  such  suits  are  allowed,  litigation  will  become  inter- 
minable, because  every  successful  action  will  be  followed  by  another, 
alleging  malice  in  the  prosecution  of  the  former;  and  second,  that 
if  the  defendant  may  sue  for  damages  sustained  by  an  unfounded 
prosecution,  the  plaintiff  may  equally  bring  an  action  when  the  de- 
fendant makes  a  groundless  defence,  —  are  well  answered  in  the 
r.fticle  already  alluded  to :  "  To  the  first  objection,  it  is  enough  to 
Jay  that  the  action  will  never  lie  for  an  unsuccessful  prosecution,  un- 
less begun  and  carried  on  with  malice  and  without  probable  cause. 
With  the  burden  of  this  difficult  proof  upon  him,  the  litigant  will 
Vieed  a  very  clear  case,  before  he  will  be  willing  to  begin  a  suit 
»!)f  this  character.  The  second  argument  fails  to  distinguish  between 
tlie  position  of  the  parties,  plaintiff  and  defendant,  in  an  action 
at  law.  The  plaintiff  sets  the  law  in  motion;  if  he  does  so  ground- 
]e.?Bly  and  maliciously,  he  is  the  cause  of  the  defendant's  damage. 
But  the  defendant  stands  only  on  his  legal  rights  —  the  plaintiff  hav- 
ing taken  his  case  to  court,  the  defendant  has  the  privilege  of  calling 
upon  him  to  prove  it  to  the  satisfaction  of  the  judge  or  jury,  and  he 
is  guilty  of  no  wrong  in  exercising  this  privilege." 
Judqment  and  order  reversed,  and  cause  remanded,  for  a  new  trial. 

My  rick,  J.,  McKinstry,  J.   Morrison,  C.  J.,  and  Thornton,  J.,  con- 
curring. 


PART  II. 

INCULPABLE    MIND. 
Illegal  Acts. 


CHAPTEK  VI. 

ABUSE  OF  PROCESS  AND  UNWARRANTED  ATTACHMENT. 

GRAINGER  v.  HILL. 

Common  Pleas  of  England,  Hilary  Term,  1838.    4  Bing.  N.  C.  212. 

The  declaration  stated  that  the  plaintiff,  before  the  time  of  the 
committing  of  the  grievances  by  the  defendants  hereinafter  men- 
tioned, was  master  and  proprietor  of  a  certain  smack  or  vessel,  here- 
inafter mentioned;  and  the  plaintiff,  being  such  proprietor,  and  hav- 
ing occasion  to  borrow  a  certain  sum  of  money  to  meet  his  needs, 
applied  to  and  requested  the  defendants  to  lend  and  advance  to  him 
the  sum  of  £80,  which  they,  the  defendants,  agreed  to  do,  upon  having 
the  repayment  thereof  secured  to  them  by  a  mortgage  of  the  said  smack 
or  vessel;  and  it  was  thereupon  agreed  by  and  between  the  plain- 
tiff and  defendants  that  a  mortgage  of  the  said  vessel  should  be 
accordingly  made  and  given;  and  that  the  sum  of  money  so  to  be 
advanced  and  lent  by  the  defendants  to  the  plaintiff  should  after- 
wards be  repaid  by  the  plaintiff  to  the  defendants  on  a  certain  time 
then  agreed  upon,  and  not  yet  elapsed,  to  wit,  the  28th  of  September, 
1837 ;  and  that  in  the  mean  time  the  plaintiff  should  retain  the  com- 
mand of  the  said  smack  or  vessel,  and  prosecute  and  make  voyages 
therein  for  his  own  profit  and  advantage;  and  thereupon,  after- 
wards, to  wit,  on  the  30th  of  September,  1836,  the  defendants  ac- 
cordingly lent  and  advanced  to  the  plaintiff,  upon  and  in  pursuance 
of  the  said  agreement,  and  upon  the  security  aforesaid,  the  said 
sum  of  £80;  and  the  plaintiff  also  thereupon,  in  pursuance  also  of 
the  said  agreement,  by  a  certain  indenture  then  made,  signed,  sealed, 
and  delivered  by  the  defendants  of  the  one  part  and  the  plaintiff 
of  the  other  part  (the  indenture  was  here  set  out),  mortgaged  the 
said  vessel,  subject  to  a  proviso  of  redemption  on  payment  of  £S0, 
together  with  interest  for  the  same  in  the  mean  time,  at  and  after 
the  rate  of  five  per  cent  per  annum,  on  the  28th  of  September,  1837, 

263 


264  GRAINGER   V.    HILL.  [CHAP.   VI. 

then  and  now  next  ensuing;  and  the  plaintiff  did,  in  and  by  the 
said  indenture,  covenant,  promise  and  agree  to  and  with  the  defend- 
ants that  the  plaintiff  should  well  and  truly  pay,  or  cause  to  be 
paid,  to  the  defendants  the  said  sum  of  £80,  with  interest  for  the 
same,  after  the  rate  aforesaid,  at  or  on  the  day  and  time  therein  and 
hereinbefore  expressed  and  appointed  for  payment  of  the  same.  That 
the  defendants  wrongfully,  illegally,  and  maliciously  contriving  to 
injure,  harass,  and  distress  the  plaintiff,  and  to  compel  the  plaintiff, 
by  and  through  fear  and  duress  of  imprisonment,  to  give  up  and 
relinquish  to  them  certain  goods  and  chattels  of  and  belonging  to  the 
plaintiff,  and  not  included  in  the  said  mortgage  securit",  to  wit,  a 
certain  register  and  a  certain  certificate  of  the  register  of  the  said 
smack  or  vessel,  and  without  the  possession  of  which  the  plaintiff 
could  not  go  to  sea  or  prosecute  his  said  voyages  in  manner  aforesaid 
as  agreed  upon  by  and  between  the  plaintiff  and  defendants,  as  the 
defendants  well  knew,  long  before  the  said  time  so  appointed  as 
aforesaid  for  the  payment  of  the  said  sum  of  £80,  to  wit,  on,  &c., 
called  upon  and  requested  payment  of  and  from  the  plaintiff  of  the 
said  sum  of  £80,  and  then  threatened  to  arrest  him  for  the  same 
unless  he  immediately  paid  to  them  the  amount  thereof.  That,  upon 
the  plaintiff's  refusing  so  to  do,  the  defendants  wrongfully  and  un- 
justly contriving  and  intending  as  aforesaid,  and  to  imprison,  harass, 
oppress,  injure,  and  impoverish  the  plaintiff,  and  to  cause  and  procure 
him  to  be  arrested  and  imprisoned,  and  to  prevent  his  making 
and  prosecuting  any  voyages  whatsoever  in  his  said  smack  or  vessel, 
and  wholly  to  ruin  the  plaintiff  thereby,  well  knowing  that  the  plain- 
tiff was  wholly  unprepared  and  unprovided  with  bail,  heretofore,  to 
wit,  on  the  26th  of  November,  1836,  falsely  and  maliciously  caused 
and  procured  to  be  sued  and  prosecuted  out  of  the  court  of  our 
lord  tlie  king  of  the  bench  at  Westminster,  for  the  said  sum  of  £80, 
a  certain  writ  of  our  lord  the  king  called  a  capias  (setting  it  out). 
That  the  defendants,  contriving  and  intending  as  aforesaid,  after- 
wards, to  wit,  on,  &c.,  wrongfully,  illegally,  and  maliciously  caused 
and  procured  the  said  writ  to  be,  and  the  same  was  then,  marked  and 
indorsed  for  bail  for  £95  17s.  C)d.,  being  the  sum  of  £80,  and  certain 
alleged  costs,  charges,  and  expenses,  making  together  the  sum  of 
£95  17s.  Gd. ;  and  tlie  said  writ  being  indorsed  for  bail  as  aforesaid, 
the  defendants  afterwards  and  before  the  return  thereof,  to  wit,  on, 
&c.,  contriving  and  intending  as  aforesaid,  wrongfully  and  maliciously 
caused  the  plaintiff  to  be,  and  he  then  was,  arrested  by  his  body, 
under  and  by  virtue  of  the  said  writ,  and  was  tlioreupon  imprisoned, 
and  kept  and  detained  in  prison  for  a  long  time,  to  wit,  for  the 
space  of  twelve  hours  then  next  following,  until  he,  the  plaintiff,  not 
being  prepared  or  provided  with  bail  to  the  said  action,  by  and 
through  fear  and  duress  of  imprisonment,  was  forced  and  compelled 
to  give  up  and  njlinquish  to  them  the  goods  and  chattels  before  men- 


CHAP,  VI.]  ABUSE  OF  TROCESS.  265 

tioned,  to  wit,  the  said  register  and  certificate  of  registry,  and  did 
so  give  up  and  relinquish  the  same;  and  the  defendants  tlience 
hitlierto  wrongfully  and  unjustly,  and  against  the  consent  and  will 
of  the  plaintiff,  forcibly  and  against  law  kept  and  detained  tlie  same 
from  the  plaintifif.  By  means  of  which  said  several  premises,  the 
plaintiff  being,  as  the  defendants  before  and  after  the  time  of  the 
said  arrest  well  knew,  wholly  unprepared  and  unprovided  with  bail, 
whilst  he  was  so  imprisoned  as  aforesaid,  not  only  suffered  great 
pain  of  body  and  mind,  and  was  greatly  exposed  and  injured  in  his 
credit  and  circumstances,  and  was  hindered  and  prevented  from  per- 
forming and  transacting  his  lawful  business  and  affairs  by  him  during 
that  time  to  be  performed  and  transacted,  but  especially  was  pre- 
vented and  deterred  from  making  and  prosecuting  with  the  said 
smack  or  vessel,  divers,  to  wit,  four  several  voyages  with  and  in  the 
said  smack  or  vessel,  to  wit,  from  London  to  Caen  and  back  again, 
and  lost  and  was  deprived  thereby  of  all  the  benefits,  profits,  and  ad- 
vantages which  would  have  otherwise  flowed  and  accrued  to  him 
the  plaintiff  therefrom,  and  was  by  means  of  the  premises  otherwise 
greatly  injured  and  damnified. 

There  was  a  count  in  trover  for  a  ship's  register.  The  defendants 
pleaded  the  general  issue. 

At  the  trial  it  appeared  that  in  September,  1836,  the  plaintiff, 
by  deed,  mortgaged  to  the  defendants  for  £80  a  vessel  of  which  he 
was  owner  as  well  as  captain.  The  money  was  to  be  repaid  in  Septem- 
ber, 1837;  and  the  plaintiff  was  to  retain  the  register  of  the  vessel 
in  order  to  pursue  his  voyages. 

In  November,  1836,  the  defendants,  under  some  apprehension 
as  to  the  sufficiency  of  their  security,  resolved  to  possess  themselves 
of  the  ship's  register,  and  for  this  purpose,  after  threatening  to 
arrest  the  plaintiff  unless  he  repaid  the  money  lent,  they  made 
an  afl[idavit  of  debt,  sued  out  a  capias  indorsed  for  bail  in  the  sum 
of  £95  17s.  6d.  in  an  action  of  assumpsit,  and  sent  two  sheriff's  of- 
ficers with  the  writ  to  the  plaintiff,  who  was  lying  ill  in  bed  from 
the  effects  of  a  wound.  A  surgeon  present,  perceiving  he  could  not 
be  removed,  one  of  the  defendants  said  to  the  sheriff's  officers,  "  Don't 
take  him  away;  leave  the  young  man  with  him."  The  officers  then 
told  the  plaintiff  that  they  had  not  come  to  take  him,  but  to  get 
the  ship's  register;  but  that  if  he  failed  to  deliver  the  register,  or  to 
find  bail,  they  must  either  take  him,  or  leave  one  of  the  officers  with 
him.  The  plaintiff,  being  unable  to  procure  bail,  and. being  much 
alarmed,  gave  up  the  register. 

The  plaintiff  afterwards  came  to  an  arrangement  with  the  de- 
fendants, was  discharged  from  the  arrest,  paid  the  costs,  repaid  the 
money  borrowed  on  mortgage,  and  received  from  the  defendants  a 
release  of  the  mortgage  deed.  No  further  steps  were  taken  in  t^e 
action  of  assumpsit.    Upon  this  arrangement  a  caption  fee,  whicli  had 


266  GRAINGER   V.    HILL.  [CHAP.    VI. 

been  charged  and  paid  by  the  plaintiff  to  the  sheriff's  officers,  was  re- 
paid by  the  defendants  to  the  plaintiff.  Verdict  for  plaintiff;  motion 
for  nonsuit,  and  in  arrest  of  judgment. 

TiNDAL,  C.  J.  .  .  .  [After  stating  the  facts  the  Chief  Justice  pro- 
ceeded:] 

The  first  ground  urged  for  a  nonsuit  is,  that  the  facts  proved  with 
respect  to  the  writ  of  capias  do  not  amount  to  an  arrest.  It  appears 
to  me  that  the  arrest  was  sufficiently  established. 

The  second  ground  urged  for  a  nonsuit  is,  that  there  was  no  proof 
of  the  suit  commenced  by  the  defendants  having  been  terminated. 
But  the  answer  to  this,  and  to  the  objection  urged  in  arrest  of  judg- 
ment, namely,  the  omission  to  allege  want  of  reasonable  and  probable 
cause  for  the  defendants'  proceeding,  is  the  same;  that  this  is  an 
action  for  abusing  the  process  of  the  law,  by  applying  it  to  extort 
property  from  the  plaintiff,  and  not  an  action  for  a  malicious  arrest 
or  malicious  prosecution,  in  order  to  support  which  action  the  termi- 
nation of  the  previous  proceeding  must  be  proved,  and  the  absence  of 
reasonable  and  probable  cause  be  alleged  as  well  as  proved.  In  the 
case  of  a  malicious  arrest,  the  sheriff  at  least  is  instructed  to  pursue 
the  exigency  of  the  writ.  Here  the  directions  given,  to  compel  the 
plaintiff  to  yield  up  the  register,  were  no  part  of  the  duty  enjoined 
by  the  writ.  If  the  course  pursued  by  the  defendants  is  such  that 
there  is  no  precedent  of  a  similar  transaction,  the  plaintiff's  remedy 
is  by  an  action  on  the  case,  applicable  to  such  new  and  special  cir- 
cumstances; and  his  complaint  being  that  the  process  of  the  law  has 
been  abused,  to  effect  an  object  not  within  the  scope  of  the  process, 
it  is  immaterial  whether  the  suit  which  that  process  commenced  has 
been  determined  or  not,  or  whether  or  not  it  was  founded  on  reason- 
able and  probable  cause. 

As  to  the  count  in  trover,  if  the  taking  of  the  register  was  wrongful, 
that  taking  was  of  itself  a  conversion,  and  no  demand  and  refusal  was 
necessary  as  a  preliminary  to  this  action.  It  seems  to  me  that 
taking  the  property  of  another  without  his  consent,  by  an  abuse  of 
the  process  of  the  law,  must  be  deemed  a  wrongful  taking,  and  there- 
fore this  rule  must  be  discharged. 

Park,  Vaughan  and  Bosanquet,  JJ.,  delivered  concurring  opia- 
ions. 

Rule  discharged. 


CHAP.    VI.]  ABUSE   OF    PKOCESS.  267 

ZINN  V.  EICE. 

Supreme  Court  of  Massacliusetts,  May,   1891.     154  Mass.   1. 

Tort,  to  recover  damages  for  alleged  wrongful  acts  of  the  de- 
fendant, in  tliat,  in  an  action  of  contract  brought  by  him  against 
the  plaintiff  to  recover  the  sum  of  $4,522.45,  he  maliciously  placed 
the  ad  damnum  in  the  writ  at  $40,000,  and  maliciously  caused  to  be 
made  various  attachments,  each  in  the  sum  last  named,  upon  the 
real  and  personal  property  of  the  plaintiff,  to  his  great  damage. 

At  the  trial  in  the  Superior  Court,  before  Lathrop,  J.,  the  plain- 
tiff offered  to  prove  that  the  defendant  on  February  7,  1889,  sued 
out  a  writ  in  an  action  of  contract,  in  which  the  damages  were  laid 
at  $40,000;  that  on  February  9  two  successive  attachments,  each  in 
the  sum  of  $40,000,  were,  under  the  defendant's  instructions,  placed 
on  the  plaintiff's  real  estate,  which  was  worth  many  times  the  amount 
owed  to  the  defendant  by  the  plaintiff;  that  on  February  12,  1889, 
the  defendant  caused  an  attachment  in  the  same  sum  to  be  placed 
upon  the  plaintift''s  stock  of  goods  and  merchandise,  valued  at  about 
$100,000,  situated  in  his  stores  in  Boston,  and  a  keeper  was  put  over 
the  same  who  remained  there  for  two  days;  that  at  this  time  the 
plaintiff  was,  as  the  defendant  knew,  absent  from  the  Commonwealth 
for  the  benefit  of  his  health ;  that  subsequently,  in  the  absence  of  the 
plaintiff  and  upon  the  statement  of  his  counsel,  an  order  was  ob- 
tained in  the  Superior  Court  reducing  the  ad  damnum  in  the  writ 
to  $10,000;  that  the  defendant  did  what  he  did  maliciously,  and  for 
the  avowed  purpose  of  injuring  the  plaintiff;  and  that  by  these 
acts  of  the  defendant  the  plaintiff  had  been  greatly  damaged.  It 
also  appeared  that  tJie  original  action  in  which  the  attachments  were 
made  had  not  been  terminated  when  the  present  action  was  brought, 
but  was  still  pending  before  an  auditor. 

The  judge  ruled  that  the  present  action  was  prematurely  brought, 
and  ordered  a  nonsuit  to  be  entered;  and  the  plaintiff  alleged  excep- 
tions. 

W.  Allen,  J.  It  is  not  contended  that  the  facts  alleged  in  the 
declaration  and  offered  to  be  proved  at  the  trial  are  not  sufficient 
to  sustain  an  action  by  the  plaintiff  against  the  defendant.  The  de- 
fendant's contention  is,  that  the  action  is  prematurely  brought;  that 
it  is  an  action  for  malicious  prosecution,  and  subject  to  the  rule 
that  a  suit  for  malicious  prosecution  cannot  be  maintained  until  the 
prosecution  has  terminated  in  favor  of  the  plaintiff.  But  the  rule 
applies  only  to  suits  for  maliciously  instituting  groundless  prosecu- 
tions, and  does  not  apply  to  the  injurious  and  malicious  use  of  proc- 
ess in  proceedings  which  were  commenced  with  probable  cause.  The 
latter,^  being  for  the  malicious  use  of  legal  process  by  acts  authorized 

'  Sic  for  former. 


268  ziNN  V.  RICE.  [chap.  VI. 

by  its  terms,  may  be  called  actions  for  malicious  prosecution,  to  dis- 
tinguish them  from  actions  for  the  abuse  of  process  by  doing,  under 
color  of  legal  process,  acts  not  authorized  by  it;  but  there  is  no  rule 
of  law  that  in  such  an  action  the  termination  of  any  former  suit  must 
be  shown.  The  rule  is  founded  on  the  necessity  of  proving  that  a 
prosecution  which  itself  puts  in  issue  the  truth  of  the  charge  on  which 
it  is  founded  is  without  probable  cause.  A  defendant  in  such  an 
action  cannot  bring  another  action  to  try  the  issue  tendered  him  ii^ 
the  first,  while  that  issue  is  pending.  The  rule  is  by  its  terms  arid 
nature  limited  to  a  prosecution  to  establish  a  charge  or  cause  of  ac- 
tion, and  cannot  include  an  ex  parte  use  of  process  incidental  and 
collateral  to  such  a  prosecution,  and  in  defence  to  which  falsity  of  the 
charge  cannot  be  shown.  Parker  v.  Langly,  10  Mod.  209.  Fortman 
V.  Eottier,  8  Ohio  St.  548.  Bump  v.  Betts,  19  Wend.  421.  Barnett  v. 
Eeed,  51  Penn.  St.  190.  Jenings  v.  Florence,  2  C.  B.  (K  S.)  467. 
Churchill  v.  Siggers,  3  El.  &  Bl.  929.  Wentworth  v.  Bullen,  9  B.  &  C. 
840.  Savage  v.  Brewer,  16  Pick.  453.  Bicknell  v.  Dorion,  16  Pick. 
478.  Wood  V.  Graves,  144  Mass.  365.  Everett  v.  Henderson,  146 
Mass.  89.1 

In  the  case  at  bar  the  grievance  of  the  plaintiff  is  not  that  the 
defendant  maliciously  commenced  a  groundless  suit.  He  admits  that 
the  defendant  had  a  good  cause  of  action,  and  that  there  is  no  defence 
to  the  suit,  and  that  its  termination  cannot  be  in  his  favor.  Nor  is 
his  grievance  that  the  defendant  abused  the  process  in  the  former 
suit,  and  under  color  of  it  did  things  not  authorized  by  its  terms. 
His  grievance  is  that  the  defendant,  having  a  just  cause  of  action 
and  a  legal  suit  against  this  plaintiff,  made  an  excessive  attachment 
of  property  which  he  knew  was  not  needed  for  the  security  of  his  debt, 
not  for  the  purpose  of  securing  his  debt,  but  for  the  purpose  of  in- 
juring the  plaintiff.  If  the  plaintiff  has  any  right  of  action,  which 
is  not  controverted,  it  is  idle  to  say  that  he  must  wait  until  the  former 
action  has  terminated  in  his  favor. 

The  defendant  contends  that  the  amount  of  the  debt  must  be  fixed 
by  the  determination  of  the  former  suit,  and  that  it  cannot  be  shown 
in  this  suit.  We  know  of  no  authority  or  reason  for  this.  The  amount 
of  the  debt  cannot  exceed  the  amount  declared  for  in  the  suit,  and 
that  is  admitted  to  be  due  so  far  certainly  as  affects  this  suit.  Beyond 
that  there  is  no  question  in  the  former  suit,  and  no  issue,  and  the 
proceedings  complained  of  were  ex  parte,  and  they  were  terminated 
by  the  reduction  of  the  attachment.  It  is  argued  that  the  plaintiff 
in  tbat  suit  may  amend  his  declaration,  and  introduce  a  new  cause 
of  action.  That  case,  as  stated  by  tlic  plaintiff  himself,  docs  not 
present  any  issue  involved  in  the  case  at  bar,  and  the  possil)ility  that  a 
new  cause  of  action  may  be  added,  if  it  existed,  would  not  be  sufficient 
to  show  that  the  issues  presented  in  this  case  are  pending  in  that, 

»  I'oBt,   p.    286. 


CHAP.   VI.]  ABUSE   or   PROCESS.  269 

or  to  bring  it  within  the  terms  or  reason  of  the  rule  that  the  liability 
of  this  plaintiff  to  such  possible  cause  of  action  can  be  tried  only  m 

that  action.  . 

Exceptions  susiamea. 


270  BIRD   V.    JONES.  [chap.    VII. 


CHAPTEE  VII. 
FALSE    IMPEISONMENT. 

BIRD  V.  JONES. 

Queen's  Bench  of  England,  1845.    7  Q.  B.  742. 

Verdict  for  the  plaintiff  in  an  action  for  false  imprisonment,  and 
rule  nisi  for  a  new  trial.  The  judgments  explain  the  nature  of  the 
case.  Cur.  adv.  vult. 

Coleridge,  J.  In  this  case,  in  which  we  have  unfortunately  been 
unable  to  agree  in  our  judgment,  I  am  now  to  pronounce  the  opinion 
which  I  have  formed ;  and  I  shall  be  able  to  do  so  very  briefly  because, 
having  had  the  opportunity  of  reading  a  judgment  prepared  by  my 
brother  Patterson,  and  entirely  agreeing  with  it,  I  may  content  my- 
self with  referring  to  the  statement  he  has  made  in  detail  of  those 
preliminary  points  in  which  we  all,  I  believe,  agree,  and  which  bring 
the  case  up  to  that  point  upon  which  its  decision  must  certainly  turn 
and  with  regard  to  which  our  difference  exists. 

This  point  is  whether  certain  facts,  which  may  be  taken  as  clear 
upon  the  evidence,  amount  to  an  imprisonment.  These  facts,  stated 
shortly,  and  as  I  understand  them,  are  in  effect  as  follows : — 

A  part  of  a  public  highway  was  inclosed  and  appropriated  for  spec- 
tators of  a  boat-race,  paying  a  price  for  their  seats.  The  plaintiff 
was  desirous  of  entering  this  part,  and  was  opposed  by  the  defendant ; 
but  after  a  struggle,  during  which  no  momentary  detention  of  his 
person  took  place,  he  succeeded  in  climbing  over  the  inclosure.  Two 
policemen  were  then  stationed  by  the  defendant  to  prevent,  and  they 
did  prevent,  him  from  passing  onwards  in  the  direction  in  which  he 
declared  his  wish  to  go;  but  he  was  allowed  to  remain  unmolested 
where  he  was,  and  was  at  liberty  to  go,  and  was  told  that  he  was  so, 
in  the  only  other  direction  by  which  he  could  pass.  This  he  refused 
for  some  time,  and  during  that  time  remained  where  he  had  thus 
placed  himself. 

These  are  the  facts;  and  setting  aside  those  which  do  not  properly 
bear  on  the  question  now  at  issue,  there  will  remain  these:  that  the 
plaintiff,  being  in  a  public  highway  and  desirous  of  passing  along  it 
in  a  particular  direction,  is  prevented  from  doing  so  l)y  the  orders  of 
the   defendant,   and   that   the   defendant's   agents    for    the   purpose 


CHAP.    VII.]  FALSE    IMPRISONMENT.  271 

are  policemen,  from  whom  indeed  no  unnecessary  violence  was  to  be 
anticipated,  or  such  as  they  believed  unlawful,  yet  who  might  be 
expected  to  execute  such  commands  as  they  deemed  lawful  with  all 
necessary  force,  however  resisted.  But  althougli  thus  obstructed,  the 
plaintiff  was  at  liberty  to  move  his  person  and  go  in  any  other  di- 
rection at  his  free  will  and  pleasure;  and  no  actual  force  or  restraint 
on  his  person  was  used,  unless  the  obstruction  before  mentioned 
amounts  to  so  much. 

I  lay  out  of  consideration  the  question  of  right  or  wrong  between 
these  parties.  The  acts  will  amount  to  imprisonment  neither  more 
nor  less  from  their  being  wrongful  or  capable  of  justification. 

And  I  am  of  opinion  that  there  was  no  imprisonment.  To  call  it  so 
appears  to  me  to  confound  partial  obstruction  and  disturbance  with 
total  obstruction  and  detention.  A  prison  may  have  its  boundary 
large  or  narrow,  visible  and  tangible  or,  though  real,  still  in  concep- 
tion only ;  it  may  itself  be  movable  or  fixed :  but  a  boundary  it  must 
have;  and  that  boundary  the  party  imprisoned  must  be  prevented 
from  passing;  he  must  be  prevented  from  leaving  that  place  within 
the  ambit  of  which  the  party  imprisoning  would  confine  him,  except 
by  prison-breach.  Some  confusion  seems  to  me  to  arise  from  con- 
founding imprisonment  of  the  body  with  mere  loss  of  freedom.  It 
is  one  part  of  the  definition  of  freedom  to  be  able  to  go  whithersoever 
one  pleases;  but  imprisonment  is  something  more  than  the  mere  loss 
of  this  power;  it  includes  the  notion  of  restraint  within  some  limits 
defined  by  a  will  or  power  exterior  to  our  own. 

In  Com.  Dig.  Imprisonment  (G)  it  is  said:  "Every  restraint  of 
the  liberty  of  a  free  man  will  be  an  imprisonment."  For  this  the 
authorities  cited  are  2  Inst.  482;  Cro.  Car.  210  (a).  But  when  these 
are  referred  to,  it  will  be  seen  that  nothing  was  intended  at  all  incon- 
sistent with  what  I  have  ventured  to  lay  down  above.  In  both  books 
the  object  was  to  point  out  that  a  prison  was  not  necessarily  what  is 
commonly  so  called,  a  place  locally  defined  and  appointed  for  the  re- 
ception of  prisoners.  Lord  Coke  is  commenting  on  the  statute  of 
Westminster  2d,^  "  in  prisona,"  and  says,  "  every  restraint  of  the 
liberty  of  a  free  man  is  an  imprisonment  although  he  be  not  within 
the  walls  of  any  common  prison."  The  passage  in  Cro.  Car.^  is  from 
a  curious  case  of  an  information  against  Sir  Miles  Hobert  and  Mr. 
Stroud  for  escaping  out  of  the  Gate  House  Prison,  to  which  they  had 
been  committed  by  the  King.  The  question  was  whether,  under  the 
circumstances,  they  had  ever  been  there  imprisoned.  Owing  to  the 
sickness  in  London,  and  through  the  favor  of  the  keeper,  these  gentle- 
men had  not,  except  on  one  occasion,  ever  been  within  the  walls  of  the 
Gate  House.  The  occasion  is  somewhat  singularly  expressed  in  the 
decision  of  the  court,  which  was  "  that  their  voluntary  retirement  to 

»1  Stat.  13  Edw.  I,  c.  48. 

» Hobert  &  Stroud's  Case,   Cro.  Car.  209. 


272  BIRD   V.    JONES.  [chap.   VII. 

the  close  stool "  in  the  Gate  House  "  made  them  to  be  prisoners.'* 
The  resolution  however  in  question  is  this :  "  that  the  prison  of  the 
King's  Bench  is  not  any  local  prison  confined  only  to  one  place,  and 
that  every  place  where  any  person  is  restrained  of  his  liberty  is  a 
prison;  as  if  one  take  sanctuary  and  depart  thence,  he  shall  be  said 
to  break  prison." 

On  a  case  of  this  sort,  which  if  there  be  difficulty  in  it  is  at  least 
purely  elementary,  it  is  not  easy  nor  necessary  to  enlarge;  and  I  am 
unwilling  to  put  any  extreme  case  hypothetically.  But  I  wish  to  meet 
one  suggestion  which  has  been  put  as  avoiding  one  of  the  difficulties 
which  cases  of  this  sort  might  seem  to  suggest.  If  it  be  said  that  to 
hold  the  present  case  to  amount  to  an  imprisonment  would  turn  every 
obstruction  of  a  right  of  way  into  an  imprisonment,  the  answer  is, 
that  there  must  be  something  like  personal  menace  or  force  accom- 
panying the  act  of  obstruction,  and  that,  with  this,  it  will  amount 
to  imprisonment.  I  apprehend  that  is  not  so.  If,  in  the  course  of  a 
night,  both  ends  of  a  street  were  walled  up,  and  there  was  no  egress 
from  the  house  but  into  the  street,  I  should  have  no  difficulty  in  say- 
ing that  the  inhabitants  were  thereby  imprisoned ;  but  if  only  one  end 
were  walled  up,  and  an  armed  force  stationed  outside  to  prevent  any 
scaling  of  the  wall  or  passage  that  way,  I  should  feel  equally  clear 
that  there  was  no  imprisonment.  If  there  were,  the  street  would 
obvioikgly  be  the  prison,  and  yet  as  obviously  none  would  be  confined 
to  it. 

Knosi^ing  that  my  lord  has  entertained  strongly  an  opinion  directly 
contrary  to  this,  I  am  under  serious  apprehension  that  I  overlook 
some  difficulty  in  forming  my  own;  but  if  it  exists,  I  have  not  been 
able  to  discover  it,  and  am  therefore  bound  to  state  that,  according 
to  my  view  of  the  case,  the  rule  should  be  absolute  for  a  new  trial. 

Williams^  J.  ...  A  part  of  Hammersmith  Bridge,  which  is  gen- 
erally used  as  a  public  footway,  was  appropriated  for  seats  to  view 
a  regatta  on  the  river,  and  separated  for  that  purpose  from  the  car- 
riage way  by  a  temporary  fence.  The  plaintiif  insisted  upon  pass- 
ing along  the  part  so  appropriated,  and  attempted  to  climb  over  the 
fence.  The  defendant  (clerk  of  the  Bridge  Company)  pulled  him 
back;  but  the  plaintiff  succeeded  in  climbing  over  the  fence.  The 
defendant  then  stationed  two  policemen  to  prevent,  and  they  did 
prevent,  the  plaintiff  from  proceeding  forwards  along  the  footway  in 
the  direction  he  wished  to  go.  The  plaintiff  however  was  at  the  same 
time  told  that  he  might  go  back  into  the  carriage  way  and  proceed 
to  the  other  side  of  the  bridge  if  he  pleased.  The  plaintiff  refused 
to  do  so,  and  remained  where  he  was  so  obstructed  about  half  an 
hour. 

And  if  a  partial  restraint  of  the  will  be  sufficient  to  constitute  an 
imprisonment,  such  undoubtedly  took  place.  He  wished  to  go  in  a 
particular  direction,  and  was  prevented;    but  at  the  same  time  an- 


CHAP.    VII.]  FALSE    IMPRISONMENT.  273 

other  course  was  open  to  him.  About  the  meaning  of  the  word  im- 
prisonment, and  the  definitions  of  it  usually  given,  there  is  so  little 
doubt  that  any  difference  of  opinion  is  scarcely  possible.  Certainly, 
so  far  as  I  am  aware,  none  such  exists  upon  the  present  occasion. 
The  difficulty,  whatever  it  be,  arises  when  the  general  rule  is  applied 
to  the  facts  of  a  particular  case. 

"Every  confinement  of  the  person"  (according  to  Blackstone^) 
"  is  an  imprisonment,  whether  it  be  in  a  common  prison,  or  in  a 
private  house,  or  in  the  stocks,  or  even  by  forcibly  detaining  one  in 
the  public  streets,"  which  perhaps  may  seem  to  imply  the  application 
of  force  more  than  is  really  necessary  to  make  an  imprisonment. 
Lord  Coke,  in  his  second  Institute,^  speaks  of  "  a  prison  in  law " 
and  "  a  prison  in  deed ; "  so  that  there  may  be  a  constructive  as  well 
as  an  actual  imprisonment;  and  therefore  it  may  be  admitted  that 
personal  violence  need  not  be  used  in  order  to  amount  to  it.  "  If 
the  bailiff  "  (as  the  case  is  put  in  Bull.  N.  P.  63)  "  who  has  a  process 
against  one,  says  to  him,  '  You  are  my  prisoner  —  I  have  a  writ 
against  you,'  upon  which  he  submits,  turns  back  or  goes  with  him, 
though  the  bailiff  never  touched  him  yet  it  is  an  arrest,  because  he 
submitted  to  the  process."  So  if  a  person  should  direct  a  constable 
to  take  another  in  custody,  and  that  person  should  be  told  by  the 
constable  to  go  with  him,  and  the  orders  are  obeyed,  and  they  walk 
together  in  the  direction  pointed  out  by  the  constable,  that  is  con- 
structively an  imprisonment  though  no  actual  violence  be  used. 

In  such  cases,  however,  though  little  may  be  said,  much  is  meant 
and  perfectly  understood.  The  party  addressed  in  the  manner  above 
supposed  feels  that  he  has  no  option,  no  more  power  of  going  in  any 
but  the  one  direction  prescribed  to  him  than  if  the  constable  or  bailiff 
had"  actually  hold  of  him;  no  return  or  deviation  from  the  course 
prescribed  is  open  to  him.  And  it  is  that  entire  restraint  upon  the 
will  which,  I  apprehend,  constitutes  the  imprisonment.  In  the  pas- 
sage cited  from  Buller's  Nisi  Prius  it  is  remarked  that,  if  the  party 
addressed  by  the  bailiff,  instead  of  complying,  had  run  away,  it  could 
be  no  arrest  unless  the  bailiff  actually  laid  hold  of  him,  and  for  obvi- 
ous reasons.  Suppose  (and  the  supposition  is  perhaps  objectionable 
as  only  putting  the  case  before  us  over  again)  any  person  to  erect 
an  obstruction  across  a  public  passage  in  a  town,  and  another,  who 
had  a  right  of  passage,  to  be  refused  permission  by  the  party  obstruct- 
ing, and  after  some  delay  to  be  compelled  to  return  and  take  another 
and  circuitous  route  to  his  place  of  destination ;  I  do  not  think  that, 
during  such  detention,  such  person  was  under  imprisonment  or  could 
maintain  an  action  for  false  imprisonment,  whatever  other  remedy 
might  be  open  to  him. 

I  am  desirous  only  to  illustrate  my  meaning  and  explain  the  reason 

J  3  Black.  Com.  127. 
»2  Inst.  589, 


274  WEST    V.    SMALLWOOD.  [CHAP.    VII, 

why  I  consider  the  imprisonment  in  this  case  not  to  be  complete. 
The  reason  shortly  is,  that  I  am  aware  of  no  case,  nor  of  any  defini- 
tion, which  warrants  the  supposition  of  a  man  being  imprisoned 
during  the  time  that  an  escape  is  open  to  him  if  he  chooses  to  avail 
himself  of  it. 

Patterson,  J.,  gave  a  concurring  opinion;  Lord  Denman,  Ch.  J., 
dissented. 

Rule  absolute. 


WEST   V.    SMALLWOOD. 

Court  of  Exchequer  of  England,  Easter  Term,  1838.    3  Mees.  &  W.  418. 

Trespass  for  assault  and  false  imprisonment.  Plea,  the  general 
issue. 

At  the  trial  before  Lord  Abinger,  C.  B.,  at  the  Middlesex  sittings 
after  Hilary  Term,  it  appeared  that  the  plaintiff  was  a  builder,  and 
had  been  employed  by  the  defendant  to  build  some  houses  for  him 
under  a  specific  contract.  Whilst  the  work  was  going  on  a  dispute 
arose  between  the  plaintiff  and  defendant,  and  the  plaintiff  in  con- 
sequence discontinued  the  work,  upon  which  the  defendant  went 
before  a  magistrate  and  laid  an  information  against  him,  imder  the 
Master  and  Servant's  Act,  4  Geo.  4,  c.  34,  §  3.  The  magistrate  hav- 
ing granted  a  warrant,  the  defendant  accompanied  the  constable 
who  had  the  execution  of  it,  and  pointed  out  the  plaintiff  to  him. 
Upon  being  brought  before  the  magistrate,  the  complaint  was  heard 
and  dismissed.  Lord  Abinger,  C.  B.,  was  of  opinion  that  the  action 
was  misconceived,  and  should  have  been  in  case;  and  thought  that 
the  evidence  of  interference  in  the  arrest  by  the  defendant  was  too 
slight  to  make  him  a  trespasser;  and  the  plaintiff's  counsel  not  having 
pressed  his  lordship  to  lay  that  question  before  the  jury,  the  plaintiff 
was  nonsuited.  Motion  that  the  nonsuit  be  set  aside  and  new  trial 
granted. 

Lord  Abinger,  C.  B.  Where  a  magistrate  has  a  general  Jurisdic- 
tion over  the  subject-matter,  and  a  party  comes  before  him  and  pre- 
fers a  complaint,  upon  which  the  magistrate  makes  a  mistake  in 
thinking  it  a  case  within  his  authority,  and  grants  a  warrant  which 
is  not  justifiable  in  point  of  law,  the  party  complaining  is  not  liable 
as  a  trespasser,  but  the  only  remedy  against  him  is  by  an  action 
upon  the  case,  if  he  has  acted  maliciously.  Tlie  magistrate  acting 
without  any  jurisdiction  at  all  is  liable  as  a  trespasser  in  many  cases, 
but  this  liability  does  not  extend  to  the  constable,  who  acts  under  a 
warrant,  and  the  statute  24  Geo.  2,  c.  44,  was  passed  with  this  very 
object  of  prolecting  such  officers.  As  to  the  otlior  part  of  the  case, 
I  do  not  deny  that  the  fact  of  the  defendant's  presence  when  the 


CHAP.    VII.]  FALSE    IMPRISONMENT.  275 

plaintiff  was  taken,  and  his  pointing  him  out  to  the  constable,  might 
make  it  a  case  to  go  to  the  jury,  but  that  was  not  pressed  on  the  part 
of  the  plaintiff. 

BoLLAND,  B.  I  am  of  the  same  opinion,  and  for  the  same  reasons. 
With  regard  to  the  case  of  the  sheriff,  that  is  clearly  distinguishable 
from  the  present,  because  the  party  puts  the  sheriff  in  motion,  and 
the  latter  acts  in  obedience  to  him.  In  the  case  of  an  act  done  by 
a  magistrate,  the  complainant  does  no  more  than  lay  before  a  court 
of  competent  jurisdiction  the  grounds  on  which  he  seeks  redress, 
and  the  magistrate,  erroneously  thinking  that  he  has  authority, 
grants  a  warrant.  As  to  the  subsequent  conduct  of  the  defendant, 
all  he  does  is  to  point  the  plaintiff  out  to  the  constable  as  the  person 
named  in  the  warrant;  but  this  does  not  amount  to  any  active  inter- 
ference. If  any  malice  could  be  shown,  it  might  have  formed  the 
ground  of  an  action  on  the  case. 

Alderson,  B.  As  to  the  first  point,  the  party  must  be  taken  to  have 
merely  laid  his  case  before  the  magistrate,  who  thereupon  granted  a 
warrant  adapted  to  the  complaint.  Then,  what  has  been  done  by  the 
defendant  to  make  him  liable  as  a  trespasser  ?  He  would  be  liable  only 
in  case,  if  he  was  actuated  in  what  he  did  by  malice.  Then  comes  the 
second  question;  and  I  agree  in  the  doctrine,  that  if  the  defendant 
took  an  active  part  with  the  constable  in  apprehending  the  plaintiff, 
he  must  have  failed  on  the  state  of  these  pleadings,  because  it  would 
have  been  incumbent  on  him  to  show  that  he  had  a  right  so  to  do, 
which  he  could  only  have  done  under  a  special  plea,  and  could  not 
do  under  the  general  issue.  But  all  that  the  defendant  did  in  this 
instance  was  to  point  out  to  the  constable  the  party  who  was  to  be 
arrested.  And  though  undoubtedly  that  was  evidence  for  the  jury, 
yet  where  counsel  submits  to  the  view  taken  of  the  evidence  by  the 
judge  at  nisi  prius,  and  does  not  claim  to  have  it  left  to  the  jury, 
I  think  we  ought  not  to  interfere. 

Rule  refused. 


SAVACOOL   V.   BOUGHTOK 

Supreme  Court  of  New  York,  July,  1830.     5  Wend.  170. 

Demurrer  to  replication.  The  plaintiff  declared  in  trespass  for  an 
assault,  battery,  and  false  imprisonment.  The  defendant  pleaded,  1. 
The  general  issue;  2.  A  justification,  for  that  he  as  a  constable,  by 
virtue  of  an  execution  issued  by  a  justice  of  the  peace,  on  a  judgment 
rendered  against  the  plaintiff  in  assumpsit  for  $7.38,  arrested  the 
plaintiff  and  committed  him  to  jail ;  and,  3.  A  similar  justification, 
getting  forth  the  judgment.  The  plaintiff  replied  to  the  second  and 
third  pleas  precludi  non,  because,  previous  to  the  rendition  of  the 


276  SAVACOOL   V.   BOUGHTON.  [CHAP.    VII. 

judgment  set  forth  by  the  defendant,  the  justice  who  rendered  the 
same  did  not  issue  any  process  for  the  appearance  of  him  (the  plain- 
tiff) in  the  suit  in  which  the  judgment  was  rendered,  and  that  he 
(the  plaintiff)  did  not  direct  or  authorize  the  justice  to  enter  a  judg- 
ment by  confession  in  favor  of  the  plaintiffs  in  the  suit,  against  him 
(the  plaintiff  in  this  cause),  nor  did  the  parties  in  the  said  suit 
appear  before  the  justice  and  join  issue,  pursuant  to  the  provisions 
of  the  $50  Act;  and  this,  &c.,  wherefore,  &c.  To  this  replication  the 
defendant  demurred,  and  the  plaintiff  joined  in  demurrer. 

Marcy,  J.  What  an  officer  is  required  to  show  to  justify  himself 
in  the  execution  of  process  is  not  very  clearly  settled.  There  is  con- 
siderable contrariety  of  authority  on  the  subject.  Where  it  appears 
on  the  face  of  the  process  that  the  court  or  magistrate  that  issued  it 
had  not  jurisdiction  of  the  subject-matter  of  the  suit,  or  of  the  person 
of  the  party  against  whom  it  is  directed,  it  is  void,  not  only  as  respects 
the  court  or  magistrate  and  the  party  at  whose  instance  it  is  sued 
out,  but  it  affords  no  protection  to  the  officer  who  has  acted  under  it. 

Where  the  court  issuing  the  process  has  general  jurisdiction,  and 
the  process  is  regular  on  its  face,  the  officer  is  not,  though  the  party 
may  be,  affected  by  an  irregularity  in  the  proceedings.  Where  a 
judgment  is  vacated  for  an  irregularity,  the  party  is  liable  for  the 
acts  done  under  it;  but  the  officer  has  a  protection  by  reason  of  his 
regular  writ.     1  Lev.  95;    1  Sid.  272;    1  Strange,  509. 

]\Iore  strictness  has  been  required  in  justifying  under  process  of 
courts  of  limited  jurisdiction.  Many  cases  may  be  found  wherein  it 
is  stated  generally  that  when  an  inferior  court  exceeds  its  jurisdic- 
tion, its  proceedings  are  entirely  void,  and  afford  no  protection  to  the 
court,  the  party,  or  the  officer  who  has  execiited  its  process. 

This  proposition  is  undoubtedly  true  in  its  largest  sense  where  the 
proceedings  are  coram  non  judice,  and  the  process  by  which  the  officer 
seeks  to  make  out  his  justification  shows  that  the  court  had  not  juris- 
diction ;  but  I  apprehend  that  it  should  be  qualified  where  the  subject- 
matter  of  the  suit  is  within  the  jurisdiction  of  the  court,  and  the 
alleged  defect  of  jurisdiction  arises  from  some  other  cause.  A  court 
may  have  jurisdiction  of  the  subject-matter,  but  not  of  the  person 
of  the  parties.  If  it  does  not  acquire  the  latter,  its  proceedings 
derive  no  validity  from  the  former.  A  justice  of  the  peace  who 
should  give  judgment  against  a  person  on  a  promissory  note  under 
$50,  without  having  issued  process  of  any  kind  against  him,  or  taken 
his  confession,  or  without  his  voluntary  appearance  in  court,  would 
exceed  his  jurisdiction  and  be  responsible  to  the  party  injured;  so 
would  ibo  pnrty  who  procured  the  court  to  exceed  its  authority.  But 
would  the  ofTiccr  to  whom  an  execution  on  this  judgiuent  had  been 
issued  be  linblo  for  acts  done  in  obedience  to  it,  if  nothing  appeared 
to  Rhow  that  the  justice  had  not  jurisdiction  of  the  defendant's  per- 
son?    This  is  the  question  pn'sented  l)y  the  demurrer  in  this  case. 


CHAP,    VII.]  FALSE    IMPRISONMENT.  277 

A  distinction  has  long  existed  in  cases  of  this  kind,  between  the 
court  which  exceeds  its  jurisdiction  and  the  party  at  whose  instance 
it  takes  phice,  and  a  mere  ministerial  officer  who  executes  the  process 
issued  without  authority.  This  prevails,  as  we  have  seen,  where  a 
judgment  has  been  obtained  in  a  court  of  general  jurisdiction  which 
is  subsequently  set  aside  for  irregularity.  The  officer  has  a  protection 
that  the  party  has  not,  and  that,  whether  the  court  from  which  the 
process  issues  is  a  court  of  general  or  limited  jurisdiction.  The  right 
of  a  mere  ministerial  officer  to  justify  under  his  process  where  the 
court  or  party  cannot,  was  considered,  but  not  settled,  in  the  case  of 
Smith  V.  Bouchier  and  Others,  decided  in  1734.  This  case  is  found 
in  2  Strange,  993;  2  Barnard.  331;  Cunn.  89,  127;  Cases  temp. 
Hardwicke,  G2;  2  Kelyn.  144,  pi.  123.  The  reports  agree  as  to  the 
facts,  but  not  as  to  some  points  in  the  opinion  of  the  court.  Process 
was  issued  from  the  chancellor's  court  of  Oxford  against  Smith,  who 
was  arrested  and  committed  to  jail.  The  proceedings  were  instituted 
without  proving  what  was  requisite  to  give  the  court  jurisdiction. 
The  plaintiff  who  procured  the  proceedings,  the  vice-chancellor  who 
held  the  court,  and  the  officers  who  executed  the  process,  were  all 
sued  by  the  defendant  Smith  for  false  imprisonment.  They  united 
in  their  plea  of  justification,  and  were  all  pronounced  guilty.  Sir 
John  Strange  makes  the  court  say  that  some  of  the  defendants, 
namely,  the  officer  and  jailer,  might  have  been  excused  if  they  had 
justified  without  the  plaintiff  and  vice-chancellor.  The  Court  of 
Common  Pleas  in  England,  in  their  opinion  in  the  case  of  Perkin  v. 
Proctor  and  Green,  2  Wilson,  382,  say  that  Lord  Hardwicke  denied 
that  such  could  have  been  the  case.  It  appears  from  the  case,  as 
reported  in  Hardwicke's  Cases,  69,  that  the  point  of  the  officer's 
liability  was  not  settled;  for  it  is  there  said  that  there  was  no  need 
of  giving  a  distinct  opinion  as  to  the  action  lying  against  them. 

In  Hill  V.  Bateman,  2  Strange,  710,  the  distinction  in  favor  of  the 
officer  is  clearly  taken.  The  plaintiff  had  been  fined  under  the  game 
laws,  and  was  immediately  sent  to  bridewell,  without  any  attempt 
to  levy  the  penalty  upon  his  goods.  This  the  justice  had  not  a  right 
to  do,  and  was  held  liable  for  the  imprisonment;  but  the  constable 
was  justified,  because  the  matter  was  within  the  jurisdiction  of  the 
justice.  I  understand  by  this  case  that  the  justice  had  not  authority, 
or,  in  other  words,  had  not  jurisdiction,  to  issue  process  to  commit 
the  party  until  he  had  attempted  to  levy  the  fine  upon  his  goods; 
but  that  after  he  had  made  that  attempt  without  success,  he  had 
authority  to  commit  him.  The  process,  though  unauthorized  by  the 
circumstances  of  the  case,  would,  under  other  circumstances,  have 
been  proper.  The  issuing  of  the  process  was  a  matter  within  the 
justice's  jurisdiction.  This  was  enough  for  the  officer's  justification. 
It  is  further  said  in  this  case,  if  the  justice  makes  a  warrant  which 
is  plainly  out  of  his  jurisdiction,  it  is  no  justification.    This  I  under- 


278  SAVACOOL   V.    BOUGHTON.  [CHAP.    VII. 

stand  to  mean  a  warrant  which  appears  on  its  face  to  be  such  as  the 
justice  could  in  no  case  issue. 

The  views  I  have  of  this  case  are  confirmed  by  that  of  Shergold  v. 
Holloway^  2  Strange,  1002.  There  the  justice  issued  a  warrant  on  a 
complaint  for  not  paying  wages,  and  the  defendant,  a  constable,  ar- 
rested Shergold  on  it.  He  was  sued  for  this  arrest.  The  court  said 
the  justice  had  no  autliority  in  any  instance  to  proceed  by  warrant, 
a  summons  being  the  only  process.  The  constal^le  could  not  therefore 
justify;  he  was  presumed  to  know  that  under  no  circumstances 
could  a  warrant  be  issued  in  such  a  case;  therefore  the  court  say 
there  was  "  no  pretence  for  such  a  justification."  This  decision  would 
doubtless  have  been  different  if  it  had  appeared  that  under  any  state 
of  things  a  proceeding  by  warrant  was  allowable  in  such  a  case;  for 
then  the  court  would  assume  for  the  officer's  protection  that  such  a 
state  of  things  did  exist,  or,  at  least,  he  should  not  be  required  to 
judge  whether  it  did  or  not.  His  duty  and  his  protection  both  depend 
upon  the  assumption  that  the  justice  had  determined  correctly,  that 
those  circumstances  had  happened  which  called  for  a  warrant,  if 
under  any  circumstances  a  warrant  could  issue.  In  the  case  of 
Moravia  v.  Sloper,  Willes,  30,  the  same  distinction  which  has  been 
noticed  in  the  cases  before  referred  to  is  still  more  distinctly  put 
forth.  It  is  there  said  that  "  though  in  case  of  an  officer  who  is 
obliged  to  obey  the  process  of  the  court,  and  is  punishable  if  he  does 
not,  it  may  not  be  necessary  to  set  forth  that  the  cause  of  action 
arose  within  the  jurisdiction  of  the  court;  it  has  always  been  holden, 
except  in  one  case  (the  correctness  of  which  C.  J.  Willes  controverted 
in  another  part  of  his  opinion),  and  we  are  all  clearly  of  opinion  that 
it  is  necessary  in  the  case  of  a  plaintiff  himself." 

Lord  Kenyon  says,  in  the  case  of  The  King  v.  Danser,  6  T.  E.  242, 
"  A  distinction  indeed  has  been  made  with  respect  to  the  persons 
against  whom  an  action  may  be  brought  for  taking  the  defendant's 
goods  in  execution  by  virtue  of  the  process  of  an  inferior  court,  where 
the  cause  of  action  does  not  arise  within  its  jurisdiction ;  the  plain- 
iijf  in  the  cause  being  considered  a  trespasser,  but  not  the  officer  of 
the  court."  A  court  of  admiralty,  I  apprehend,  will  not  be  con- 
sidered a  court  of  general  jurisdiction.  In  relation  to  its  proceed- 
ings, Buller,  J.,  says,  in  the  case  of  Ladbroke  v.  Crickett,  2  T.  R. 
053,  if  upon  their  face  "  the  court  had  jurisdiction,  the  officer  was 
bound  to  execute  the  process,  and  could  not  examine  into  the  founda- 
tion of  them ;   and  that  will  protect  him." 

There  are  several  cases  in  our  own  Eeports  which  are  supposed 
to  militate  against  the  distinction  recognized  in  the  foregoing  cases; 
I  apprt^icnd,  however,  that  most  of  them  may  be  reconciled  with 
those  decisions  wliich  support  it.  The  decision  in  the  case  of 
Borden  v.  Fitch,  15  Johns.  R.  121,  was,  that  a  court  must  not  only 
have  jurisdiction  of  the  subject-matter,  but  of  the  person  of  the 


CHAP.   VII.]  FALSE   IMPRISONMENT.  279 

parties,  to  render  its  proceedings  valid;  and  if  it  has  not  jurisdiction 
of  the  person,  its  proceedings  are  absolutely  void.  It  will  be  recol- 
lected that  the  person  who  wished  to  avail  himself  of  the  proceedings 
of  the  court  whose  jurisdiction  was  impeached,  was  a  party  to  tliem. 
There  was  no  occasion  or  opportunity  afforded  by  that  case  of  con- 
sidering the  question  involved  in  this,  the  liability  of  the  officer,  who, 
as  a  minister  of  the  court,  has  executed  its  process  issued  on  such 
proceedings. 

The  case  of  Cable  v.  Cooper,  15  Johns.  E.  152,  deserves  a  more 
minute  consideration.  One  Brown  was  committed  an  a  ca.  sa.  to  the 
custody  of  the  defendant,  who  was  sheriff  of  Oneida  County,  and  dis- 
charged by  a  Supreme  Court  commissioner  under  the  habeas  corpus 
act.  The  defendant,  when  prosecuted  for  the  escape  of  Brown,  of- 
fered to  justify  by  showing  the  discharge;  but  a  majority  of  the 
court  decided  that  the  proceedings  under  the  habeas  corpus  act 
before  the  commissioner  were  coram  non  judice,  and  therefore  void. 
The  principle  of  this  decision  is,  that  the  power  to  discharge  under 
that  act  does  not  apply  to  the  case  of  a  prisoner  who  "  is  convict  or  in 
execution  by  legal  process/'  Brown  was  in  execution  by  legal  process, 
and  this  was  well  known  to  the  defendant,  for  he  had  the  ca.  sa.,  and 
held  the  prisoner.  Whatever  appeared  upon  the  face  of  the  discharge, 
he  knew,  if  he  rightly  understood  the  powers  of  the  commissioner, 
it  was  no  authority  for  him  to  release  Brown.  If  the  discharge  did 
not  relate  to  the  imprisonment  on  the  ca.  sa.,  it  was  certainly  no 
authority  to  release  him  from  confinement  thereon;  and  if  it  did 
relate  to  that  imprisonment,  then  it  showed  on  its  face  a  want  of 
jurisdiction  in  the  officer  who  granted  it;  for  he  could  not  discharge 
a  person  in  execution  by  legal  process.  Again,  the  sheriff  who  held 
the  prisoner  might  well  be  regarded  as  a  party  to  the  proceeding 
before  the  commissioner  for  the  discharge;  for  the  habeas  corpus 
must  have  been  directed  to  him,  and  his  return  thereto  showed  the 
true  cause  of  Brown's  detention. 

The  cases  of  Smith  v.  Shaw,  13  Johns.  E.  257,  and  Suydam  and 
Wyckoff  V.  Keys,  13  lb.  444,  have  a  tendency  to  obliterate,  or  at 
least  confound,  the  distinction  which  the  other  cases  seem  to  me  to 
raise  in  favor  of  the  officer.  I  am  free  to  confess  that  the  reasoning 
and  conclusion  of  the  judge  who  delivered  the  dissenting  opinion  in 
the  former  case  are  more  satisfactory  to  me  than  those  contained  in 
the  opinion  adopted  by  a  majority  of  the  court.  Smith,  in  that  case 
was  not  looked  upon  in  the  light  of  a  mere  ministerial  officer.  He 
was  superior  in  authority  to  Hopkins  and  Findley,  who  had  illegally 
imprisoned  the  plaintiff;  and  his  liability  was  put  expressly  upon 
the  ground  that  he  had  ratified  and  confirmed  their  acts,  and  exer- 
cised other  restraint  over  the  plaintiff  than  merely  continuing  the 
original  imprisonment.  If  he  had  only  refused  to  discharge  the 
prisoner,  he  would  not,  as  is  strongly  intimated  by  the  court,  have 


280  SAVACOOL   V.    BOUGHTON.  [CHAP.   VII. 

been  held  liable.  This  case  was  not  considered  by  the  court  as  pre- 
senting the  question  which  arises  in  the  one  now  before  us,  and 
therefore  it  can  afford  but  little  authority  to  guide  our  present  deter- 
mination. 

It  seems  to  me  somewhat  difficult  to  reconcile  the  decision  in  the 
case  of  Suydam  and  Wyckoli  v.  Keys,  with  the  doctrine  I  am  en- 
deavoring to  establish,  or  with  the  principles  of  some  other  cases 
which  have  been  decided  here.  The  defendant  was  a  collector  of  a  tax 
which  had  been  voted  by  a  school  district  in  Orange  County,  and 
assessed  by  the  trustees.  They  had  authority  to  assess,  but  were  con- 
fined in  their  assessments  to  the  resident  i7ihahitants  of  the  district. 
The  plaintiffs,  having  property  in  the  district,  but  actually  resident 
in  New  York,  were  included  among  the  persons  assessed,  and  desig- 
nated on  the  warrant  issued  to  the  defendant  as  inhabitants  of  the 
district.  He  took  their  property  by  virtue  of  this  warrant,  and  was 
held  liable  in  an  action  of  trespass.  It  appears  to  me  the  defendant, 
acting  merely  as  a  ministerial  officer,  should  have  been  allowed  the 
protection  of  his  warrant,  which  did  not  show  upon  the  face  of  it  an 
excess  or  want  of  jurisdiction  in  the  trustees.  I  cannot  distinguish 
this  case  from  a  whole  class  of  cases,  beginning  with  the  earliest 
reports  and  coming  down  to  this,  holding  that  such  a  warrant  is  a 
protection  to  the  officer  executing  it,  unless  it  is  to  be  distinguished 
from  cases  otherwise  similar,  by  the  fact  that  the  want  of  jurisdic- 
tion in  the  trustees  to  make  the  assessment  on  the  plaintiffs  was  to 
be  presumed  to  be  within  the  knowledge  of  the  officer,  and  that  he 
was  bound  to  act  on  this  knowledge,  in  opposition  to  the  statements 
of  his  warrant.  The  decision,  however,  is  not  put  on  such  ground, 
but  upon  the  broad  principle  that  the  officer  must  see  that  he  acts 
within  the  scope  of  the  legal  powers  of  those  who  commanded  him. 
This  principle  requires  a  ministerial  officer  to  look  beyond  his  pre- 
cept, and  examine  into  extrinsic  facts  beyond  the  fact  of  jurisdiction 
of  the  subject-matter  generally,  or  under  certain  circumstances. 
Such,  I  apprehend,  was  not  the  doctrine  applied  to  the  case  of  War- 
ner V.  Shed,  10  Johns.  R.  138,  There  the  officer  was  justified  by  his 
process,  as  that  showed  the  justice's  jurisdiction  of  the  subject-matter. 
"  He  was  not  bound,"  the  court  says,  "  to  examine  into  the  validity 
of  the  proceedings  and  of  the  process."  The  collector's  warrant  in 
the  former  case,  as  well  as  the  constable's  mittimus  in  the  latter, 
showed  jurisfliction  of  the  subject-matter  in  the  officers  issuing  the 
process.  In  the  former  case  it  appeared  upon  the  face  of  the  process 
that  the  plaintiffs  were  resident  inhabitants,  and  as  such  they  were 
liable  to  be  assessed ;  and  I  should  think  that  the  collector  was  no 
more  bound  to  examine  into  the  fact  of  residence  which  had  been 
passed  on  by  tbe  trustees,  than  the  constable  was  to  look  into  the 
proceedings  of  the  special  sessions  under  whose  authority  he  acted. 

I  find  still  greater  difficulty  in  reconciling  the  case  of  Suydam  and 


CH.iP.    VII.]  FALSE   IMPRISONMENT.  281 

Wyckoff  V.  Keys  witli  that  of  Beach  v.  Furnian,  9  Johns.  E.  229. 
The  court  assume,  though  they  do  not  directly  decide,  that  Sarah 
Furman  was  not,  by  reason  of  being  a  female,  liable  to  be  assessed 
to  work  on  the  highways;  yet  they  held  that  the  justice  who  issued, 
at  the  instance  of  tlie  overseer  of  the  highways,  the  warrant  on  which 
her  property  was  taken  and  sold  for  this  illegal  assessment,  and  the 
constable  who  executed  it,  both  protected,  because  they  acted  minis- 
terially and  in  obedience  to  the  commissioners  and  overseer  of  high- 
ways, who  had  jurisdiction  over  the  subject-matter,  the  assessment 
of  highway  labor.  Let  us  compare  this  case  with  that  of  Suydam  and 
Wyckoif  V,  Keys,  and  see  if  they  can  stand  together.  The  commis- 
sioners had  jurisdiction  of  the  subject-matter,  the  assessment  of 
labor.  The  trustees  had  jurisdiction  of  the  subject-matter,  the  as- 
sessment of  a  district  tax.  The  commissioners  assessed  a  person  who, 
by  reason  of  her  sex,  was  not  liable  to  be  assessed,  as  the  court  in 
giving  their  opinion  conceded.  The  trustees  assess  persons  who,  by 
reason  of  their  residence  out  of  the  district,  were  not  liable  to  be 
assessed;  the  justice  and  constable  who  enforce  the  commissioners' 
assessment,  by  taking  the  property  of  the  person  illegally  assessed, 
are  protected;  the  constable  who  enforces  the  illegal  assessment  of 
the  trustees,  by  taking  the  property  of  the  persons  illegally  assessed, 
is  held  liable  as  a  trespasser.  I  think  these  cases  cannot  well  stand 
together,  and  if  one  must  be  given  up,  I  do  not  hesitate  to  say  it 
should  be  Suydam  and  Wyckoff  v.  Keys. 

The  remark  of  this  court  in  the  case  of  Gold  v.  Bissell,  1  Wendell, 
213,  "  that  where  a  warrant  cannot  legally  issue  without  oath,  but  is 
so  issued,  all  the  parties  concerned  in  the  arrest  under  such  process 
are  trespassers,"  was  not  intended,  I  presume,  to  apply  to  an  oflficer 
who  had  no  knowledge,  from  the  warrant  or  otherwise,  that  it  had 
not  been  duly  sued  out.  A  remark  somewhat  similar  is  made  by 
Trimble,  J.,  in  Elliott  v.  Peirsol,  1  Peters'  U.  S.  Eep.  340 ;  but  the 
decision  of  that  case  did  not  call  for  any  such  distinction  as  is  raised 
in  the  one  now  under  consideration.  I  have  felt  that  the  case  of  Wise 
V.  Withers,  3  Cranch,  331,  is  a  direct  authority  against  giving  to 
the  officer  the  protection  that  is  now  claimed  for  him.  The  plaintiff 
in  that  case  was  a  magistrate  in  the  District  of  Columbia,  and,  as 
such,  not  subject  to  do  military  duty.  He  was  fined  for  neglect  of 
such  duty,  and  a  warrant  for  the  collection  of  the  fine  issued  to  the 
defendant,  who  seized  his  property  thereon ;  for  this  act  he  was 
prosecuted.  The  only  point  much  considered  in  that  case  was  that 
which  involved  the  question  as  to  the  plaintiff's  exemption  from 
military  duty;  but  that  which  related  to  the  defendant's  protection 
under  his  warrant  was  only  glanced  at  in  the  argument  of  counsel 
and  in  the  decision  by  the  court.  The  distinction  contended  for  in 
this  case  was  scarcely  raised  there,  and  the  attention  of  the  court 
does  not  appear  to  have  been  drawn  to  a  single  case  in  which  it  has 


282  SAVACOOL   V.   BOUGIITON.  [CHAP.    VII. 

ever  been  noticed.  The  Chief  Justice,  in  the  opinion  of  the  court, 
merely  observes,  that  it  is  a  principle  that  a  decision  of  such  a  tri- 
bunal (a  tribunal  of  limited  jurisdiction),  clearly  without  its  juris- 
diction, cannot  protect  the  officer  who  executes  it.  I  would,  with 
deference,  ask  whether  there  is  not  an  error  in  the  application  of  the 
principle  which  the  Chief  Justice  lays  down  to  the  case  then  before 
the  court.  He  must  mean,  by  a  decision  being  clearly  without  the 
jurisdiction  of  the  court,  a  sentence  or  judgment  on  a  matter  not 
within  its  cognizance.  Was  the  subject-matter  of  that  cause  beyond 
the  cognizance  of  a  court-martial?  It  appears  to  me  that  it  was  not. 
The  power  and  duty  of  the  court  was  to  punish  and  fine  delinquents; 
consequently,  it  had  jurisdiction  over  the  subject-matter,  but  not 
over  the  person.  There  was  nothing  in  the  process  whicli  the  minis- 
terial officer  executed  to  apprise  him  that  the  court  had  not  jurisdic- 
tion of  the  'person.  It  seems  to  me  that  it  was  not  a  case  to  which 
the  principle  laid  down  by  the  court  was  applicable ;  but  it  would  have 
been  such  a  case  if  there  had  been  a  want  of  jurisdiction  over  the 
subject-matter.  I  can  scarcely  consider,  therefore,  the  determination 
of  the  Supreme  Court  of  the  United  States  in  the  case  of  Wise  v. 
Withers  a  deliberate  decision  on  the  question  now  before  us.  If  it 
was  to  be  viewed  in  that  light,  we  should  be  called  upon,  by  the  great 
learning  and  high  character  of  that  court,  to  hesitate  long  and  exam- 
ine carefully  before  we  decided  a  point  conflicting  with  such  decision. 

There  is  certainly  high  authority  for  the  distinction  which  I  am 
disposed  to  recognize  in  this  case;  and,  in  my  judgment,  the  same 
principle  which  gives  protection  to  a  ministerial  officer  who  executes 
the  process  of  a  court  of  general  jurisdiction,  should  protect  him 
when  he  executes  the  process  of  a  court  of  limited  jurisdiction,  if  the 
subject-matter  of  the  suit  is  within  that  jurisdiction,  and  nothing 
appears  on  the  face  of  the  process  to  show  that  the  person  was  not 
also  within  it. 

The  following  propositions,  I  am  disposed  to  believe,  will  be  found 
to  be  well  sustained  by  reason  and  authority :  — 

That  where  an  inferior  court  has  not  jurisdiction  of  the  subject- 
matter,  or,  having  it,  has  not  jurisdiction  of  the  person  of  the  de- 
fendants, all  its  proceedings  are  absolutely  void;  neither  the  mem- 
bers of  the  court  nor  the  plaintiff  (if  lie  procured  or  assented  to  the 
proceedings)  can  derive  any  protection  from  them  when  prosecuted 
by  a  party  aggrieved  thereby. 

If  a  mere  ministerial  officer  executes  any  process,  upon  the  face 
of  wliich  it  nppoars  that  the  court  which  issued  it  had  not  jurisdiction 
of  the  siibjcct-mattor,  or  of  the  person  against  whom  it  is  directed, 
such  process  will  afTord  liini  no  protection  for  acts  done  under  it. 

If  the  subject-muttfr  of  a  suit  is  within  the  jurisdiction  of  a  court, 
but  there  is  a  want  of  jurisdiction  as  to  the  'person  or  place,  the  officer 
who  executes  process  issued  in  sucli  suit  is  no  trespasser,  unless  the 


CHAP.    VII.]  FALSE   IMPRISONMENT.  283 

want  of  jurisdiction  appears  by  such  process.  Bull.  N.  P.  83 ;  Willes, 
32,  and  the  cases  there  cited  by  Lord  Ch.  J.  Willes. 

I  am  therefore  of  opinion  that  the  execution  issued  by  the  justice 
to  the  defendant,  it  being  on  proceedings  over  the  subject-matter  of 
which  he  had  jurisdiction,  and  the  execution,  not  showing  on  its  face 
that  he  had  not  jurisdiction  of  the  plaintiff's  person,  was  a  protection 
to  the  defendant  for  the  ministerial  acts  done  by  him  in  virtue  of 
that  process. 

Judgment  on  demurrer  for  the  defendant,  with  leave  to  the  plain- 
tiff to  amend  his  replication  on  payment  of  costs. 


WILMAETH  V.  BUET. 

Supreme  Court  of  Massachusetts,  October,  1843.     7  Met.  257. 

Two  actions  of  trespass  for  assault,  battery  and  false  imprison- 
ment. The  defendant,  a  deputy  sheriff,  pleaded  the  general  issue, 
and  set  forth,  by  way  of  defence,  that  the  assault,  &c.,  were  committed 
by  him  in  the  execution  of  civil  process,  by  arresting  the  defendants 
upon  an  execution  duly  issued  against  them  from  the  Court  of  Com- 
mon Pleas.  At  the  trial,  it  was  proved  or  admitted  that,  on  the  9th 
of  July,  1842,  an  execution,  in  the  usual  form,  was  issued  against  the 
plaintiffs  jointly,  as  co-partners,  upon  a  judgment  in  the  Court  of 
Common  Pleas,  recovered  by  E.  W.  Chaddock,  on  a  contract  made 
on  the  2d  of  October,  1837 ;  that  this  execution  was  returned  unsat- 
isfied, and  that  an  alias,  in  the  common  form,  was  issued  on  the  18th 
of  August,  1842,  upon  M^hich  the  plaintiffs  were  arrested  by  the  de- 
fendant, and  committed  to  the  jail  in  Taunton;  that  they  immedi- 
ately gave  bond  for  the  liberty  of  the  jail  limits,  went  at  large,  and 
never  surrendered  themselves. 

It  also  appeared  that  the  plaintiffs  had  taken  the  benefit  of  the 
insolvent  law  of  this  Commonwealth,  and  had  obtained  a  discharge 
under  it,  in  the  usual  form,  dated  March  6th,  1841,  and  that  this 
discharge  was  exhibited  to  the  defendant  before  he  made  the  above- 
mentioned  arrest  and  commitment.  The  defendant  admitted  that 
he  had  a  bond  of  indemnity  from  the  execution  creditor,  which  he 
required  before  he  would  arrest  the  plaintiffs  on  the  execution. 

Upon  these  facts,  the  defendant's  counsel  requested  the  court  to 
rule  that  the  actions  could  not  be  maintained,  because  trespass  will 
not  lie  against  an  officer  for  the  execution  of  process  regularly  issued, 
wherein  he  is  commanded  to  arrest  the  body  of  the  party  therein 
named  as  defendant;  because  the  plaintiffs  could  and  should  have 
pleaded  their  discharge,  during  the  pendency  of  the  action  against 
them,  in  which  said  Chaddock's  judgment  was  recovered,  and  have 


284  WILMARTH   V.    BURT.  [CHAP.    VII. 

caused  the  form  of  the  execution  to  be  varied,  pursuant  to  the  Rev. 
Sts.  c.  97,  §§  10,  11,  so  as  not  to  run  against  their  bodies;  and  because 
the  remedy  of  the  plaintiffs,  if  they  were  unlawfully  arrested,  was 
by  an  application  to  a  court  for  a  discharge,  by  habeas  corpus  or 
otherwise.  The  judge,  before  whom  the  trial  was  had,  refused  this  re- 
quest, and  instructed  the  Jury,  for  the  purpose  of  the  trials,  that  the 
plaintiffs  were  entitled  to  recover ;  and  a  verdict  was  returned,  in  each 
case,  for  the  plaintiffs,  subject  to  the  opinion  of  the  whole  court. 

Shaw,  C.  J.  These  two  cases  depend  on  the  same  principle,  and 
the  decision  of  one  settles  both.  Each  is  an  action  of  trespass  vi  et 
armis  for  an  assault  and  false  imprisonment,  and  the  trespass  relied 
upon  was  the  arrest  of  the  plaintiff,  on  an  execution,  by  the  defend- 
ant, who  was  a  deputy  sheriff.  The  plaintiffs  seek  to  avoid  this  justi- 
fication, by  showing  that  they  had  obtained  a  certificate  of  discharge, 
under  the  insolvent  law  of  Massachusetts,  which  discharge  was  ob- 
tained long  after  the  date  of  the  contract  on  which  the  judgment  was 
recovered,  and  that  they  exhibited  their  discharge  to  the  defendant 
at  the  time  of  the  arrest. 

It  does  not  distinctly  appear,  from  the  facts  stated,  whether  the 
judgment,  on  which  the  above  mentioned  execution  issued,  was  ren- 
dered before  or  after  the  date  of  the  plaintiffs'  discharge;  but  as  the 
discharge  was  granted  in  March,  1841,  and  the  first  execution  men- 
tioned is  stated  to  have  been  issued  in  June,  1842,  there  is  ground  to 
presume  that  the  judgment  was  rendered  some  time  after  the  dis- 
charge. If  such  was  the  case,  it  would  be  very  clear  that  the  officer 
could  take  no  notice  of  such  a  discharge;  for  two  reasons:  1st.  In 
the  case  supposed,  the  debtor,  having  his  discharge  before  the  rendi- 
tion of  judgment,  had  an  opportunity  to  plead  it  by  way  of  defence; 
and  if  he  did  not  do  so,  it  may  be  presumed  that  it  was  not  valid. 
2d.  The  judgment,  being  rendered  after  the  discharge,  might  have 
been  founded  on  a  cause  of  action  which  accrued  after  the  discharge; 
and  the  officer  could  not  by  possibility  know  that  it  was  not  so.  If 
the  decision  depended  on  this  question,  it  might  be  necessary  to  send 
the  cause  back,  to  have  that  fact  more  exactly  ascertained.  But  we 
think  tlie  result  must  be  the  same,  if  the  discharge  was  obtained  after 
the  rendition  of  the  judgment. 

The  execution  was  in  common  form,  authorizing  and  requiring 
the  officer  to  take  the  property  of  the  debtor,  to  satisfy  the  execution, 
and  for  want  thereof,  to  arrest  him.  In  making  the  arrest,  therefore, 
he  followed  precisely  the  command  of  his  precept.  As  a  general  rule, 
the  officer  is  bound  only  to  see  that  the  process,  which  he  is  called 
upon  to  execute,  is  in  due  and  regular  form,  and  issues  from  a  court 
having  jurisdiction  of  the  subject.  In  such  case,  he  is  justified  in 
obeying  his  precept,  and  it  is  highly  necessary  to  the  due,  prompt  and 
energetic  execution  of  the  commands  of  the  law,  that  he  should  be  so. 
Fitzpatrick  v.  Kelly,  cited  3  T.  R.  740;    Cameron  v.  Lightfoot,  2 


CHAP.    VII.]  FALSE   IMPRISONMENT.  285 

W.  Bl.  1190.  "  It  is  incomprehensible,"  says  Lord  Kenyon,  in  Belt 
V.  Broadbent,  3  T.  R.  185,  "  to  say  that  a  person  shall  be  considered 
as  a  trespasser  who  acts  under  the  process  of  the  court."  Tarlton  v. 
Fisher,  2  Doug.  671,  was  trespass  for  assault  and  false  imprison- 
ment of  a  certificated  bankrupt.  Some  doubt  arose  upon  the  express 
words  of  the  statute,  that  such  person  "  shall  not  be  liable  to  be  ar- 
rested." But  it  was  held,  that  tliough  the  debtor  might  have  a  super- 
sedeas to  the  execution,  yet  that  till  superseded,  it  was  a  justification ; 
and  even  after  supersedeas,  though  trespass  would  lie  against  the 
party,  it  would  not  lie  against  the  sheriff.  And  this  is  stated  to  be 
the  settled  practice.  The  inconvenience  would  be  very  great,  if  the 
law  were  otherwise. 

And  we  think  the  same  principle  is  well  established  by  the  au- 
thorities in  our  own  books.  Smith  v.  Bowker,  1  Mass.  76;  Haskell 
V.  Sumner,  1  Pick.  459.  In  Nichols  v.  Thomas,  4  Mass.  232,  on  an 
execution  against  a  corporation  styled  the  President,  Directors  and 
Company  of  a  Turnpike,  the  officer  arrested  and  committed  one  of 
the  proprietors.  There,  indeed,  he  was  held  liable,  because  the  plain- 
tiff was  not  named  nor  described  in  his  precept ;  the  corporate  name 
not  being  the  description  or  designation  of  any  natural  person  what- 
ever. But  Parsons,  C.  J.,  there  affirms  the  general  rule,  and  illus- 
trates it  by  reference  to  an  executor  or  administrator  not  liable  to 
arrest.  "  If,"  says  he,  "  an  execution  should  illegally  issue  against 
the  body  of  an  executor  or  administrator,  on  a  judgment  against  the 
estate  of  the  deceased,  the  officer  might  be  justified  in  arresting  the 
body  of  the  executor  or  administrator,  as  he  did  not  mistake  his  pre- 
cept, which  issued  from  a  court  having  jurisdiction."  The  same  rule 
is  recognized  in  Sanford  v.  Nichols,  13  Mass.  288,  where  Parker, 
C.  J.,  says,  "  it  will  not  do  to  require  of  executive  officers,  before  they 
shall  be  held  to  obey  precepts  directed  to  them,  that  they  shall  have 
evidence  of  the  regularity  of  the  proceedings  of  the  tril)unal  which 
commands  the  duty.  Such  a  principle  would  put  a  stop  to  the  execu- 
tion of  legal  process." 

If  the  plaintiff  in  such  case  has  any  remedy,  it  is  not  against  the 
officer,  wdio  has  simply  executed  the  regular  precept  of  a  court  having 
jurisdiction,  but  by  applying  for  his  discharge  out  of  custody,  or  by 
audita  querela,  or  by  an  action  on  the  case  against  the  party  who  thus 
wrongfully  armed  the  officer  with  power  to  arrest  him,  upon  the 
ground  of  its  being,  on  his  part,  a  malicious  arrest. 

And  the  reason  for  adopting  this  valuable  rule,  in  a  case  like  the 
present,  is  very  strong.  It  would  paralyze  the  action  of  an  officer, 
and  often  defeat  the  service  of  legal  process,  if  he  were  boimd  to  stop 
and  try  the  genuineness  and  validity  of  a  certificate  of  discharge 
under  a  bankrupt  or  insolvent  law.  The  certificate  may  not  be  gen- 
uine or  legally  authenticated,  and  yet  the  officer  can  take  no  evidence, 
nor  even  put  the  debtor  himself  under  oath  to  prove  it. 


286  EVERETT   V.    HENDERSON".  [CHAP.    VII. 

But  further;  suppose  it  be  genuine,  it  is  not  an  absolute  discharge, 
or  discharge  from  all  debts,  but  only  a  discharge  sub  modo.  Under 
the  United  States  bankrupt  law  of  1841,  it  was  held  by  Mr.  Justice 
Story,  that  though,  by  the  true  construction  of  that  law,  the  certifi- 
cate, in  certain  cases,  is  not  a  discharge  from  fiduciary  debts,  yet  that 
the  certificate  should  be  issued  in  general  and  unlimited  terms,  leav- 
ing the  bankrupt  to  avail  himself  of  it,  so  far  as  the  law  has  made  it 
an  effective  discharge.    Matter  of  Tebbetts,  5  Law  Eeporter,  259. 

So  under  our  own  insolvent  law  of  1838,  c.  163,  §  10,  modified  by 
subsequent  acts,  it  is  provided  that  if  the  insolvent  shall  have  con- 
cealed his  property,  given  preferences,  or  done  other  acts  in  fraud 
of  the  law,  his  discharge  shall  not  be  granted,  or,  if  granted,  shall  he 
of  no  effect.  Here  then  are  cases,  in  which  an  insolvent  or  bankrupt 
may  have  his  discharge  in  his  pocket,  and  present  it  to  the  officer, 
in  the  amplest  form  of  a  full  and  complete  discharge  from  all  his 
debts,  and  yet,  by  operation  of  the  law  under  which  it  is  granted,  it 
may  be  no  discharge  of  the  debt  sought  to  be  enforced  by  service  of 
the  execution.  Is  the  officer  to  try  all  the  questions  of  law  and  fact, 
involved  in  the  question  of  the  genuineness,  the  validity,  and  the 
application  of  the  discharge  to  this  particular  debt?  To  hold  that 
an  officer  would  be  liable  in  trespass,  for  executing  the  command  of 
his  precept,  would  be  to  hold  that  an  executive  officer  must  try  all 
these  questions,  without  power  to  summon  a  witness  or  hear  the 
parties,  and  to  decide  the  case  correctly,  upon  peril  of  being  liable 
for  damages  for  false  imprisonment. 

The  fact  that  the  officer  took  an  indemnity,  can  make  no  difference ; 
it  was  to  avail  him  only  in  case  he  had  mistaken  in  regard  to  his  duty. 
But  whether  he  had  an  indemnity  or  not,  is  of  no  importance  to  the 
plaintiff;  it  did  not  convert  into  a  wrong  an  act  which  was  itself 
right  and  justifiable. 

Verdicts  set  aside,  and  plaintiffs  nonsuit. 


EVEEETT  V.  HENDEESON. 

Supreme   Court   of   Massachusetts,   January,   1888.      146   Mass.   89. 

Contract  on  a  poor  debtor's  recognizance,  entered  into  by  the 
first-named  defendant  as  principal,  and  by  the  other  defendant  as 
surety,  and  containing  the  usual  conditions. 

At  the  trial  in  the  Superior  Court,  before  Mason,  J.,  it  appeared 
that  the  plaintiff  duly  recovered  judgment  against  Henderson  in  the 
Municipal  Court  of  the  City  of  Boston,  on  May  29,  1884,  and  that 
execution  duly  issued  on  the  judgment,  but  was  returned  in  no  part 
satisfied,  and  without  service.     On  September  3,  1884,  an  alias  exe- 


CHAP.   VII.]  FALSE    IMPRISONMENT.  287 

cution  on  the  judgment  duly  issued,  and  on  September  8,  1884,  the 
plaintiff  made  an  aflidavit,  in  due  form  of  law,  before  Edward  J. 
Jones,  a  master  in  chancery,  that  he  believed,  and  had  good  reasons 
to  believe,  that  Henderson  "  has  property  not  exempt  from  being 
taken  on  execution,  which  he  does  not  intend  to  apply  to  the  ])ay- 
ment "  of  the  claim ;  and  that  Henderson  "  contracted  the  debt  with 
an  intention  not  to  pay  the  same."  Thereupon  Jones,  upon  an  ex 
parte  hearing,  granted  a  certificate  "that,  after  due  hearing,  I  am 
satisfied  there  is  reasonable  cause  to  believe  that  the  charge  made  in 
the  said  affidavit  is  true;  and  satisfactory  cause  having  been  shown, 
I  hereby  autliorize  the  arrest  of  the  said  debtor  on  the  annexed  exe- 
cution ; "  and  annexed  the  affidavit  and  certificate  to  the  alias  execu- 
tion. 

On  November  1,  1884,  Henderson  was  arrested  in  Boston  by  an 
officer  duly  qualified  to  make  the  arrest  and  serve  the  execution,  and 
carried  before  Edward  J.  Jenkins,  a  commissioner  of  insolvency,  be- 
fore whom  he  gave  the  recognizance. 

On  November  24,  1884,  Henderson  duly  gave  notice  of  his  inten- 
tion to  take  the  oath  for  the  relief  of  poor  debtors,  before  Henry  W. 
Bragg,  a  master  in  chancery,  and  several  hearings  were  had.  On 
March  7,  1885,  pending  the  examination,  the  plaintiff  duly  filed 
before  Bragg  charges  of  fraud,  among  which  was  the  one  sworn  to 
in  the  affidavit,  and  hearings  were  had  on  such  charges.  The  hear- 
ings on  the  charges  of  fraud  were  continued  from  time  to  time,  and 
finally  to  April  18,  1885,  at  one  p.  m.,  at  which  time  the  plaintiff 
and  Henderson  appeared  and  remained  during  the  whole  hour,  and 
after  the  lapse  of  the  hour  the  plaintiff,  before  the  appearance  of  the 
magistrate,  departed.  The  magistrate,  Bragg,  was  not  in  attendance 
within  the  hour,  and  did  not  appear  and  attend  until  a  quarter  past 
two  o'clock,  nor  did  any  other  magistrate  attend  in  his  place,  and 
there  were  no  further  adjournments  or  proceedings  had. 

The  defendants  contended  that  the  affidavit  was  made  by  the  plain- 
tiff falsely,  fraudulently,  and  without  probable  cause,  and  that  the 
plaintiff  did  not,  at  the  time  he  made  it,  believe  or  have  good  reason  to 
believe  the  affidavit  to  be  true.  The  plaintiff,  before  any  evidence 
was  offered  by  the  defendants,  asked  the  judge  to  rule  that  no  evi- 
dence could  be  offered  or  introduced  in  this  action  to  control  or 
affect  the  affidavit,  or  to  show  that  the  affidavit  was  false,  fraudulent, 
or  made  without  probable  cause,  or  that  the  plaintiff  did  not  believe, 
or  had  no  good  reason  to  believe,  that  the  affidavit  was  true ;  but  the 
judge  refused  so  to  rule,  and  admitted  evidence  to  show  that  the 
affidavit  was  false  and  fraudulent,  and  made  without  probable  cause, 
and  that  the  plaintiff  did  not  believe,  and  had  no  good  reason  to 
believe,  the  affidavit  to  be  true  at  the  time  of  making. 

The  judge  instructed  the  jury,  that  the  burden  of  proof  was  upon 
the  defendants   to  establish  the   defence  of   fraud,   and  it   must  be 


288  EVERETT    V.    HENDERSON.  [CHAP.    VII. 

proved  aflfirinatively ;  that  it  was  not  sufficient  to  show  that  Hender- 
son intended  to  pay  the  debt  when  he  contracted  it,  nor  that  the 
plaintiff  when  he  made  the  affidavit  had  no  good  reason  to  believe 
that  Henderson  did  not  intend  to  pay  the  debt  when  he  contracted  it; 
that,  while  it  was  necessary  for  the  defendants  to  prove  both  these 
propositions,  they  must  go  further,  and  prove  that  the  plaintiff  did 
not  believe  the  affidavit  when  he  made  it,  and  that  it  was  in  fact  a 
corrupt  affidavit;  that  if  the  defendants  proved  all  this,  and  that 
the  magistrate's  certificate  authorizing  the  arrest  was  obtained  by 
the  fraud  and  perjury  of  the  plaintiff,  the  plaintiff  could  not  avail 
himself  of  the  arrest  thus  obtained  as  the  foundation  of  his  cause  of 
action,  but  as  between  the  plaintiff  and  these  defendants  the  arrest 
and  recognizance  would  be  void,  and  their  verdict  should  be  for  the 
defendants;  but  that  if  the  defendants  had  not  sustained  the  burden 
of  proof,  and  established  wilful  fraud  and  perjury  on  the  part  of  the 
plaintiff,  their  verdict  should  be  for  the  plaintiff  in  the  penal  sum 
named  in  the  recognizance. 

The  jury  found  for  the  defendants;  and  the  plaintiff  alleged 
exceptions. 

Knowlton,  J.  The  defendants  contend  that  the  recognizance 
declared  on  cannot  be  enforced,  because  the  proceedings  in  which 
it  was  taken  were  founded  upon  a  wilfully  false  affidavit  of  the 
plaintiff.  The  act  imputed  to  the  plaintiff  involves  such  moral  tur- 
pitude that  we  cannot  permit  him  even  temporarily  to  profit  by  it, 
unless  upon  principle  as  well  as  authority  our  duty  is  clear. 

The  wrong  complained  of,  so  far  as  it  affects  the  question  before 
us,  was  like  m  ordinary  malicious  prosecution  of  a  groundless  suit. 
The  proceedings  for  the  arrest  of  the  defendant  Henderson  were  in 
the  nature  of  a  new  prosecution.  They  were  for  the  purpose  of  ob- 
taining a  remedy  which  was  not  available  without  them.  The  statute 
provides  that  they  "  shall  be  considered  in  the  nature  of  a  suit  at  law." 
Pub.  Sts.  c.  162,  §  49.  They  were  founded  upon  allegations  of  fact, 
heard  at  first  ex  parte,  which,  if  issue  was  taken  upon  the  arrest,  were 
afterward  to  be  regularly  tried  between  the  parties,  with  a  view  to 
an  adjudication  which  should  give  or  withhold  the  remedy  sought. 
It  is  admitted  that  the  affidavit  was  proper  in  form  and  substance, 
that  the  magistrnte  had  jurisdiction  to  act  upon  it,  and  that  he 
judicially  found  the  facts  alleged  in  it  to  be  true,  and  signed  a  cer- 
tificate authorizing  the  arrest.  The  arrest  was  regularly  made  by  a 
proper  officer,  and  the  defendant  Henderson  was  taken  before  a  magis- 
trate, and  there  entered  into  tlie  recognizance  in  suit.  The  proceed- 
ings being  conceded  to  have  l)een  in  all  otlier  respects  legal  and 
proper,  it  is  contended  thai  the  known  falsity  of  the  plaintiff's  allega- 
tions in  his  affidavit  rendered  tlie  arrest,  as  to  liini.  illegal,  and  the 
recognizance  void. 

It  is  familiar  law  that  an  officer  called  upon  to  serve  a   process 


CHAP.    VII.]  FALSE    IMPRISONMENT.  289 

needs  only  to  see  that  it  is  good  upon  its  face,  and  it  is  not  suggested 
that  the  conduct  of  the  officer  or  of  the  magistrate  in  relation  to  this 
arrest  can  be  called  in  question.  But  there  are  cases  in  which  an 
officer  is  protected  in  making  an  arrest,  when  the  person  who  caused  it 
or  set  the  proceedings  in  motion  is  liable.  If  the  arrest  in  this  case  was 
legal  as  to  the  plaintiff  as  well  as  the  officer,  the  recognizance  founded 
upon  it  was  legal  also,  and  can  be  enforced  in  this  action.  If  it  was 
illegal  as  to  the  plaintiff,  he  can  be  sued  in  trespass  for  causing  it,  the 
process  as  to  him  is  no  justification,  and  the  recognizance  is  tainted 
with  illegality  and  is  void.  We  are  brought,  therefore,  to  the  inquiry, 
Under  what  circumstances  is  an  arrest  under  process  illegal,  as  to 
the  party  causing  it  to  be  made? 

There  is  no  doubt  that  one  who  obtains  a  process  and  causes  it 
to  be  served  assumes  the  duty  of  seeing  that  it  is  well  founded.  He 
should  know  that  it  rests  upon  a  good  record,  or  other  proper  prelim- 
inary proceeding;  but  so  far  as  the  matter  depends  upon  an  adjudica- 
tion by  a  court  or  magistrate  having  jurisdiction,  he  may  rely  upon 
that.  Processes  good  on  their  face  may  be  absolutely  void  for  want  of 
jurisdiction  in  the  court  or  magistrate  that  issues  them,  or  they  may 
be  voidable  for  error,  or  they  may  be  voidable  for  irregularity  in  ob- 
taining them.  Processes  voidable  for  error  do  not  subject  the  person 
who  directs  their  use  to  any  liability,  even  after  they  are  set  aside. 
But  processes  irregularly  obtained  may  be  set  aside,  and  then,  as 
against  those  who  obtained  them,  acts  done  under  them  are  deemed 
to  have  been  done  illegally.  Gassier  v.  Fales,  139  Mass.  4G1 ;  McGregor 
V.  Crane,  98  Mass.  530;  Barker  v.  Braham,  3  "Wils.  368;  Tarlton  v. 
Fisher,  2  Doug.  672;  Belt  v.  Broadbent,  3  T.  E.  183;  Bates  v.  Pilling, 
6  B.  &  C.  38;  West  v.  Smallwood,  3  M.  &  W.  418;  Collett  v.  Foster, 
2  H.  &  N.  356,  361;  Chapman  v.  Dyett,  11  Wend.  31;  Deyo  v.  Van 
Valkenburgh,  5  Hill  (N.  Y.),  242;  Lovier  v.  Gilpin,  6  Dana,  321. 

In  cases  of  error,  the  judicial  action  in  which  the  error  is  found 
is  a  justification  for  all  who  have  acted  in  reliance  upon  it.  In 
Marks  v.  Townsend,  97  N".  Y.  590,  where  a  process  for  arrest  was 
set  aside  for  error,  it  was  held  that  the  person  who  obtained  it  was 
not  liable,  and  it  was  said  in  the  opinion,  that  if  he  had  known  facts 
which  made  the  arrest  improper,  and,  concealing  them,  had  maliciously 
made  the  affidavit  and  caused  the  arrest,  he  would  not  have  been 
liable  for  false  imprisonment,  but  only  for  malicious  prosecution. 
The  affidavit  seems  to  have  been  of  matters  other  than  those  to  be 
tried  in  the  proceeding  then  instituted,  and  against  this  dictum  there 
are  conflicting  dicta  in  other  cases.  Some  judges  have  intimated  that 
action  like  that  supposed  would  constitute  irregularity,  for  wliich  the 
process  might  be  set  aside  even  if  there  was  error  also,  and  that  the 
affiant  would  then  be  liable  in  trespass  for  false  imprisonment. 
Williams  v.  Smith,  14  C.  B.  (N.  S.)  596;  Smith  v.  Sydney,  L.  E. 
5  Q.  B.  203 ;  Daniels  v.  Fieldine,  16  M.  &  W.  200. 


290  EVERETT    V.    HENDERSON.  [CHAP.    VII. 

The  cases  of  irregularity  cover  a  variety  of  defects  in  the  record,  or 
in  other  preliminary  proceedings.  Irregularities  do  not  result  from 
wrong  adjudications,  and  in  that  respect  they  differ  from  errors.  But 
irregularities,  whether  we  include  in  the  term  those  fundamental  de- 
fects which  go  to  the  jurisdiction  and  render  the  process  void,  or 
limit  it  by  a  stricter  definition  which  will  comprise  only  those  upon 
which  the  proceedings  may  be  set  aside,  do  not  include  false  allega- 
tions of  fact,  made  as  a  foundation  for  a  suit  in  which  the  allegations 
are  to  be  proved  or  disproved.  And  this  is  equally  true  whether  they 
are  falsely  made  by  mistake  or  by  design. 

The  remedy  for  causing  an  arrest  by  maliciously  bringing  a  suit 
upon  false  charges,  or  maliciously  making  a  false  affidavit,  is  by  an 
action  on  the  case  for  a  malicious  prosecution.  Legallee  v.  Blaisdell, 
134  Mass.  473 ;  Luce  v.  Dexter,  135  Mass.  23 ;  Baron  v.  Sleigh,  2  Cro. 
Eliz.  628;  Daniels  v.  Fielding,  16  M.  &  W.  200,  207;  De  Medina  v. 
Grove,  10  Q.  B.  152,  170;  Sheldon  v.  Carpenter,  4  N.  Y.  578.  These 
authorities  imply  the  negative,  that  an  action  of  trespass  for  the  ar- 
rest or  for  false  imprisonment  will  not  lie.  And  this  point  has  been 
directly  adjudicated.  Coupal  v.  Ward,  106  Mass.  289 ;  Mullen  v. 
Brown,  138  Mass.  114;  Langford  v.  Boston  &  Albany  Eailroad,  144 
Mass.  431 ;  Wood  v.  Graves,  144  Mass.  365 ;  Daniels  v.  Fielding,  16 
M.  &  W.  200;  Barber  v.  Eollinson,  1  C.  &  M.  330.  In  each  of  the 
first  three  of  the  latter  cases  the  arrest  was  upon  a  criminal  prosecu- 
tion, and  the  complainant  did  not  cause  it  in  the  same  sense  as  one 
causes  an  arrest  who  sues  out  a  capias  for  his  own  purposes,  and 
gives  it  to  an  officer  with  directions  to  serve  it.  One  who  makes  a 
criminal  complaint  does  not  commonly  direct  the  service  of  the 
precept,  but  from  the  beginning  the  control  of  the  prosecution  is  with 
the  officers  of  the  law.  In  Wood  v.  Graves,  ubi  supra,  in  which  the 
arrest  was  under  a  criminal  warrant,  it  was  held  that  the  defendants 
were  not  liable  for  false  imprisonment  on  account  of  abusing  the 
process  by  procuring  it  to  be  issued  for  an  improper  purpose,  and 
that  the  only  abuse  which  would  render  them  liable  was  an  improper 
use  of  it  after  it  had  been  served.  In  Gassier  v.  Fales,  139  Mass.  461, 
it  is  said  that  "  it  is  difficult  to  see  how  any  person  can  be  guilty 
of  a  trespass  in  serving  or  causing  to  be  served  a  valid  writ,  or  other 
process  of  a  court."  Lovier  v.  Gilpin,  6  Dana,  321,  328,  was  an  action 
of  trespass  against  the  plaintiff  in  a  civil  suit,  for  causing  an  attach- 
ment of  property  and  assisting  the  officer  in  making  it.  There  was 
an  offer  to  show  that  the  process  was  maliciously  obtained,  and  in  an 
elaborate  opinion,  reviewing  the  cases  and  holding  that  the  action 
could  not  be  maintained,  Marshall,  J.,  said :  "  We  have  found  no 
case  in  which  a  party  who  institutes  a  groundless  proceeding  has  been 
held  liable  as  a  trespasser  for  what  is  done  by  his  direction,  or  with 
his  aifl,  in  the  regular  course  of  that  proceeding,  unless  the  process 
under  which  the  act  complained  of  was  done  be  void,  or  unless,  if 


CHAP.    VII.]  FALSE    IMPRISONMENT.  291 

voidable  only,  the  process  itself,  or  the  proceeding  on  which  it  rests, 
has  been  set  aside  or  annulled  before  the  action  of  trespass  is  brought.'* 

The  doctrine  that  the  validity  of  proceedings  in  a  suit  at  law 
cannot  be  called  in  question  on  the  ground  that  it  is  not  well  founded 
in  fact,  rests  upon  important  considerations  of  public  policy.  Every 
suit  involves  allegations  of  fact  upon  wiiich  a  claim  is  founded.  If 
the  claim  is  resisted,  the  truth  or  falsity  of  the  allegations  is  to  be 
ascertained  by  a  trial  in  the  suit  itself.  The  bringing  of  the  suit 
is  an  offer  on  the  part  of  the  plaintiff  to  prove  them.  All  action 
in  the  case  proceeds  upon  the  theory  that  the  plaintiff  is  ready  to 
maintain  his  claim,  and  that  he  may  or  may  not  succeed  in  establish- 
ing it.  Every  step  in  the  suit  is  incidental  to  the  purpose  for  which 
it  is  presumed  to  have  been  brought,  —  that  of  determining  whether 
its  allegations  are  true,  and  of  obtaining  a  remedy  if  they  are 
proved.  Provisions  are  made  for  preserving  the  rights  of  both  parties. 
They  all  recognize  that  the  existence  of  a  just  cause  of  action  is  in 
dispute,  and  is  to  be  regularly  inquired  into  and  finally  passed  upon 
in  the  suit  itself.  Whatever  the  law  prescribes  in  the  course  of  the 
proceeding,  whether  for  the  security  of  the  plaintiff  by  way  of 
attachment  or  arrest,  or  for  the  protection  of  any  other  interests 
of  either  party,  may  be  legally  done,  and  an  ultimate  decision  that 
the  plaintiff  was  mistaken  or  wilfully  false  in  the  original  state- 
ment of  his  cause  of  action  should  not  render  it  invalid.  And  this 
because  there  must  be  incidental  acts,  oftentimes  of  great  im- 
portance and  variety,  in  the  litigation  of  a  disputed  question;  and 
it  is  necessary  that  rights  dependent  upon  these  acts  should  be  fixed 
and  stable.  Neither  the  plaintiff,  nor  any  one  else  connected  with 
the  suit,  should  be  called  upon  by  the  defendant  to  try  collaterally 
the  questions  involved  in  it. 

If,  while  the  suit  is  pending,  it  should  be  attempted  to  separate 
the  question  of  the  merits  of  the  action  from  that  of  the  plaintiff's 
belief  in  regard  to  the  merits  of  it,  it  would  be  practically  impossible 
to  do  it.  The  rule  is  familiar,  that  an  action  for  malicious  prosecu- 
tion cannot  be  maintained  until  the  original  suit  has  first  been  de- 
termined in  favor  of  the  original  defendant.  So  long  as  anything 
remains  open  for  trial  upon  the  plaintiff's  allegations  in  that,  it  will 
be  deemed  to  have  been  properly  brought.  When  it  has  been  de- 
cided in  favor  of  the  defendant,  he  may  show,  if  he  can,  that  it  was 
brought  maliciously  and  without  probable  cause,  and  recover  damages 
for  the  wrong  done  him. 

There  is  no  want  of  jurisdiction,  irregularity,  or  error  to  affect 
any  of  the  proceedings  in  a  suit  brought  in  due  form,  on  a  maliciously 
false  statement  of  a  claim.  The  only  questionable  element  in  it 
relates  to  that  which  must  be  uncertain  in  every  case,  the  validity 
of  the  plaintiff's  claim,  and  his  belief  in  regard  to  it.  When 
the  uncertainty  as  to  which  of  the  parties  is  right  is  eliminated  at 


292  EVERETT   V.    HENDERSON.  [CHAP.   VH. 

the  trial  by  a  verdict  for  tlie  defendant,  or  the  case  is  otherwise 
ended  in  his  favor,  and  an  action  for  malicious  prosecution  is  brought, 
the  former  proceedings  cannot  be  set  aside,  and  are  not  rendered  in- 
valid. 

In  an  action  for  malicious  prosecution  damages  may  be  recovered 
for  all  the  injury  which  resulted  directly  from  bringing  the  suit,  and 
from  the  measures  regularly  adopted  in  conducting  it.  It  would  be  an 
anomaly  if  one  could  recover  in  such  an  action,  and  recover  also  in 
trespass  from  the  same  defendant  for  an  arrest  regularly  made  as 
a  part  of  the  same  prosecution;  or  if  an  attachment  of  property, 
or  any  other  incidental  act  from  which  damage  resulted,  could  be 
made  a  separate  cause  of  action,  on  the  ground  that  it  was  illegal  as 
against  the  original  plaintiff  who  caused  it ;  —  much  more  if,  before 
the  termination  of  the  original  suit,  one  who  as  receiptor  had  con- 
tracted with  an  officer  to  return  attached  property  on  demand  could 
answer  the  officer's  suit  for  the  goods  by  alleging  that  the  attach- 
ment was  illegal  as  against  the  original  plaintiff  because  the  suit 
was  maliciously  brought ;  or  if  the  officer  himself  could  make  a  similar 
answer  to  a  suit  by  the  plaintiff  for  negligence  in  the  performance 
of  his  duty  in  relation  to  an  attachment. 

If  in  the  case  at  bar  the  arrest  was  not  illegal  as  against  the  plain- 
tiff, there  was  no  defect  in  the  recognizance.  It  was  for  a  good 
consideration,  and  was  entered  into  in  due  form,  in  accordance  with 
the  statute,  before  a  magistrate  having  Jurisdiction.  ]\Ioreover,  under 
our  law  it  became  the  only  security  of  the  plaintiff,  and  stood  in 
place  of  the  judgment  and  execution.  Brown  v.  Kendall,  8  Allen, 
209,  210;  Morgan  v.  Curley,  142  Mass.  107.  It  was  perfect  unless 
tainted  with  illegality.  But  the  same  considerations  that  show  the 
arrest  to  have  been  regular  and  legal  apply  to  this  also.  Indeed, 
this  having  been  entered  into  voluntarily  by  the  defendants,  the  only 
illegality  to  affect  it  must  be  sought  for  in  the  arrest  whicli  preceded 
it. 

And  it  cannot  be  truly  said  that  the  reasoning  applicable  to  arrests 
or  attachments  upon  ordinary  suits  maliciously  brought  is  inap- 
plicable to  this  arrest  upon  execution.  For  the  affidavit  was  a  state- 
ment of  matters  which  if  true  entitled  the  plaintiff  to  prosecute  and 
maintain  his  suit  in  this  way.  The  charge  of  fraud  was  the  founda- 
tion of  the  new  proceeding.  It  was  a  charge  upon  which  the 
defendant  could  plead  not  guilty,  and  demand  a  trial,  which  would 
determine  the  ultimate  rights  of  tlie  parties.  That  trial  could  be 
had  quickly,  and  the  statute  contemplated  that  both  parties  should 
proceed  regularly  in  tbe  mode  prescribed,  to  ascertain  the  truth 
or  falsity  of  the  facts  alleged,  as  they  are  required  to  do  in  any 
suit  at  law.  The  fact  that  an  issue  in  relation  to  the  pecuniary 
condition  of  the  defendant  was  also  triable  is  immaterial.  Every 
reason  why  arrests  and  attachments  made  in  suits  upon  maliciously 


CHAP.    VII.]  FALSE   IMPRISONMENT.  293 

false  declarations  should  be  held  legal,  can  be  urged  in  support 
of  the  legality  of  the  arrest  in  this  case. 

This  case  does  not  fall  within  the  principle  of  numerous  cases 
in  which  it  is  held  that  one  shall  not  be  permitted  to  take  ad- 
vantage of  his  own  wrong.  It  is  true  that  an  arrest  which  is  ac- 
complished by  means  of  an  unlawful  act,  like  breaking  a  dwelling- 
house,  is  void.  But  in  these  cases  there  is  illegal  action  which  pre- 
cedes or  accompanies  the  use  of  process,  and  is  outside  of  it,  and 
"which  leads  directly  to  the  arrest,  and  enters  as  an  element  into  it. 
In  the  case  at  bar  the  arrest  was  not  directly  caused  by  an  unlawful 
act.  The  plaintiff  had  no  connection  with  it  except  through  the 
process  which  he  ordered  served  according  to  its  precept.  He  made 
a  statement  under  oath,  which  showed  a  proper  case  for  an  arrest, 
and  a  trial  in  the  manner  prescribed  by  law.  The  magistrate  in  a 
preliminary  hearing  acted  judicially  upon  it,  and  gave  his  certifi- 
cate of  authority.  Making  a  statement  in  such  a  case  is  in  itself 
a  lawful  act;  and  a  process  regularly  issued  upon  it,  under  which 
the  statement  may  be  further  passed  upon,  is  a  lawful  process.  Il- 
legality and  fraud  taint  the  statement,  but  not  the  process.  That 
is  good  in  law,  whether  the  statement  be  true  or  false. 

So  where  unlawful  acts  have  been  done  in  obtaining  an  attach- 
ment of  property,  like  taking  possession  of  it  on  Sunday,  or  fraud- 
ulently inducing  the  owner  to  bring  it  from  a  State  where  it  cannot 
be  attached  to  one  where  it  can,  there  has  been  an  element  of  wrong 
other  than  in  the  cause  of  action  upon  which  the  writ  was  procured. 
Parsons  v.  Dickinson,  11  Pick.  352;  Ilsley  v.  Nichols,  12  Pick.  270; 
Deyo  V.  Jennison,  10  Allen,  410.  In  each  of  the  cases  cited  there 
was  fraud  or  misconduct  in  regard  to  the  propert}^  before  it  was 
taken  under  the  writ,  which  made  it  unlawful  for  the  plaintiff  to 
attach  it.  The  writ  of  replevin  referred  to  in  Pine  v.  Morrison,  121 
Mass.  296,  was  not  between  the  parties  to  that  suit,  and  did  not 
present  for  trial  the  issue  presented  in  that.  In  Crocker  v.  Atwood, 
144  Mass.  588,  the  fraud  was  not  solely  in  stating  a  fictitious  claim. 
The  attachment  of  a  particular  article  of  personal  property  does 
not  ordinarily  follow  from  merely  suing  out  a  writ  of  attachment. 
Besides  obtaining  the  writ,  the  plaintiff,  in  the  original  case  to 
which  Crocker  v.  Atwood  relates,  "  caused  the  property  to  be  taken 
on  the  attachment,''  and  this  he  did  with  a  fraudulent  purpose  to  de- 
prive the  defendant  of  his  rights  in  it.  The  case  merely  holds  that 
other  fraud  may  be  taken  advantage  of,  notwithstanding  that  there 
was  a  malicious  prosecution. 

A  distinction  has  sometimes  been  suggested  between  illegality 
as  a  ground  for  a  suit,  and  illegality  which  can  be  availed  of  in 
defence  against  the  claim  of  another.  But  no  such  distinction  exists 
in  cases  like  that  at  bar.  If  the  arrest  was  illegal  as  against  the 
plaintiff,  it  was  so  as  well  for  the  purpose  of  sustaining  a  suit  against 


294  EVERETT    V.    HENDERSON.  [CHAP.    VII. 

him  for  his  wrong  as  for  defeating  an  action  brought  upon  the  recog- 
nizance. In  Ammidon  v.  Smith,  1  Wheat.  447,  it  was  held  that  the 
fraudulent  taking  of  an  oath  by  a  person  under  arrest  on  a  civil 
process,  and  the  obtaining  of  a  release  thereby,  did  not  constitute 
an  escape,  nor  charge  the  sureties  in  a  suit  upon  his  bond  for  the 
prison  limits,  even  though  they  participated  in  the  fraud.  That  too 
was  a  case  in  which  the  oath  taken  was  not  the  foundation  of  pro- 
ceedings for  the  purpose  of  trying  the  allegations  contained  therein. 
See  also  Smith  v.  Quinton,  2  Bray.  (Vt.)  200. 

If  the  validity  of  legal  proceedings  could  be  tried  collaterally  before 
the  termination  of  the  suit,  on  the  ground  that  a  false  cause  of  action 
was  maliciously  stated,  or  that  a  false  affidavit  for  arrest  was  mali- 
ciously made,  a  defendant  whose  property  had  been  taken  might  sue 
for  an  injunction  against  the  attaching  officer.  A  defendant  arrested, 
instead  of  trying  the  facts  charged  in  the  affidavit,  in  the  manner 
prescribed  by  law,  might  apply  for  release  upon  habeas  corpus,  or, 
after  a  trial  upon  the  charges  before  a  magistrate,  and  at  any  time 
before  final  judgment  in  the  Superior  Court,  if  he  saw  he  was  likely 
to  be  convicted,  he  might  make  default,  and  set  up,  as  the  de- 
fendants have  done  in  this  case,  the  falsity  of  the  affidavit  in  defence 
to  the  supplemental  suit  upon  the  recognizance.  With  such  a  rule 
there  could  be  no  regularity  in  procedure,  and  no  certainty  as  to  the 
value  of  any  security. 

In  a  case  of  this  kind  there  is  no  hardship  in  leaving  a  party 
to  existing  remedies.  He  may,  first,  obtain  under  the  statute  an 
early  hearing  of  the  matters  alleged  against  him,  and  secondly,  after 
the  case  is  ended,  he  may,  if  the  facts  will  warrant  it,  bring  his 
action  for  a  malicious  prosecution. 

If  this  remedy  is  not  now  available  to  the  defendant,  it  is  because 
of  neglect  or  misfortune  for  which  he  is  legally  responsible.  It  was 
his  duty  to  have  a  magistrate  present  to  hear  or  continue  the  cause 
at  the  time  to  which  the  hearing  was  adjourned.  His  neglect  of 
that  duty  was  a  breach  of  his  recognizance.  Whether,  with  such  a 
termination  of  the  proceeding,  he  can  now  bring  a  suit  for  malicious 
arrest  or  prosecution  is  a  question  which  is  not  before  us.  In  Fort- 
man  V.  Rotticr,  8  Ohio  St.  548,  it  was  held  by  a  majority  of  the 
court,  that  an  action  for  malicious  prosecution  could  bo  maintained 
for  procuring  an  attachment  upon  a  false  affidavit,  without  first 
getting  the  proceeding  set  aside.  And  in  Bump  v.  Betts,  19  Wend. 
421,  a  similar  decision  was  made,  where  property  was  attacliod  and 
a  judgment  in  rem  obtained  upon  a  false  and  malicious  affidavit  that 
the  defendant  had  absconded.  But  in  both  of  these  cases  it  seems 
that  the  affidavits  were  not  of  matters  which  were  to  be  tried  in 
the  regular  course  of  proceedings  instituted  by  them,  and  in  that 
respect  they  differed  from  that  in  the  case  at  bar. 

Inasmuch  as  the  jury  were  permitted  to  find  for  the  defendants 


CHAP.    VII.]  FALSE    IMPRISONMENT.  295 

upon  a  defence  which  was  not  properly  open  to  them,  the  entry  must 
be  Exceptions  sustained. 


HOGG  V.  WARD. 

Court  of  Exchequer  of  England,  Trinity  Term,  1858.    3  Hurls.  &  N.  417. 

Trespass  for  false  imprisonment.  Plea,  not  guilty  (by  statutes 
7  Jac.  1,  c.  5,  §  1 ;  21  Jac.  1,  c.  12,  §  5 ;  19  &  20  Vict.  c.  69,  §  1 ;  2  &  3 
Vict.  c.  93,  §  8;  1  &  2  Wm.  4,  c.  42,  §  19). 

At  the  trial  before  Martin,  B.,  at  the  Spring  Assizes  for  the  county 
of  York,  it  appeared  that  on  the  9th  of  June,  1857,  the  plaintiff,  a 
butcher  residing  at  South  Cave,  was  arrested  by  the  defendant,  the 
superintendent  of  police  for  the  district,  for  having  in  his  possession 
some  traces  alleged  to  have  been  stolen  from  one  Johnson,  who  was 
a  person  in  the  habit  of  attending  fairs  as  an  itinerant  showman. 
The  traces  were  on  the  horse  in  the  plaintiff's  cart,  which  was 
being  driven  by  his  servant  at  Cave  fair.  Johnson  stopped  the  cart 
and  said  to  the  defendant,  "  These  are  my  traces  which  were  stolen 
at  the  peace  rejoicing  in  1856."  The  defendant  sent  for  the  plain- 
tiff, who  at  once  attended.  The  defendant  asked  the  plaintiff  how 
he  accounted  for  the  possession  of  the  traces.  Tlie  plaintiff  stated 
that  he  had  seen  a  stranger  pick  them  up  in  the  road,  and  that  he  had 
bought  them  of  him  for  a  shilling.  The  defendant  then  handcuffed 
the  plaintiff  and  detained  him  in  custody  till  the  next  morning,  when 
he  was  taken  before  a  magistrate,  who  immediately  discharged  him. 
According  to  the  evidence  of  the  plaintiff  and  another  witness,  John- 
son was  not  present  when  the  defendant  took  the  plaintiff  into  cus- 
tody, but  the  defendant,  who  was  called  as  witness  on  his  own  be- 
half, stated  that  Johnson  said  to  him,  when  the  plaintiff  arrived, 
"  These  are  my  traces,  and  I  insist  upon  your  taking  him  into  cus- 
tody." The  defendant  resided  about  three  miles  from  South  Cave, 
and  had  known  the  plaintiff  for  many  years. 

At  the  conclusion  of  the  evidence,  the  counsel  for  the  defendant 
submitted  to  the  learned  judge  that,  upon  the  facts  admitted  by  the 
plaintiff  to  be  true,  the  defendant  was  entitled  to  have  the  verdict 
entered  for  him.  The  learned  judge  intimated  that  he  rather  thought 
there  was  a  question  for  the  jury;  and  the  result  was  that  it  was 
agreed  that  the  opinion  of  the  jury  should  be  taken  upon  the  amount 
of  damages,  and  the  question  reserved  for  the  court  both  upon  the 
law  and  the  fact.  Rule  obtained  to  show  cause  why  the  verdict 
should  not  be  entered  for  the  defendant  pursuant  to  the  leave  re- 
served. 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  rule  must  be  dis- 
charged. I  abstain  from  expressing  any  opinion,  except  what  is 
necessary  for  disposing  of  this  particular  case.     The  general  law 


296  HOGG   V.    WARD.  [CHAP.    VII. 

and  authorities  have  established  that,  in  order  to  justify  an  arrest, 
there  must  be  a  reasonable  charge.  Whether  that  is  to  be  decided 
by  the  judge  as  a  matter  of  law,  or  by  the  jury  as  a  matter  of 
fact,  is  not  important  on  the  present  occasion,  because  it  was  ex- 
pressly reserved  for  the  court  to  decide.  It  appears  to  me  in  this 
case  there  was  not  a  reasonable  charge,  and  that  the  verdict  for  the 
plaintiff  ought  to  stand. 

Martin,  B.  I  am  of  the  same  opinion.  The  law  is  correctly  laid 
down  in  Burn's  Justice,  vol.  1,  p.  273  (29th  ed.),  where  it  is  said 
that  a  constable  may  "  apprehend  a  supposed  offender  for  a  felony 
without  warrant  upon  a  reasonable  charge  made  by  a  third  party,  and 
this  although,  upon  investigating  the  charge,  it  turn  out  that  no  felony 
has  been  committed.  But  there  must  in  all  cases  exist  a  reasonable 
charge  and  suspicion."  Therefore  the  constable  is  bound  to  ascertain 
whether  the  charge  is  reasonable.  I  am  of  opinion  that  the  charge 
in  this  case  was  not  reasonable.  The  traces,  which  were  on  the 
plaintiff's  horse,  were  alleged  to  have  been  stolen.  The  plaintiff  was 
not  present  at  the  time  the  charge  was  iirst  made,  but,  on  being 
sent  for,  he  came  and  gave  an  account  of  how  he  came  possessed 
of  the  traces;  but,  in  defiance  of  that,  the  defendant  arrested  and 
imprisoned  him.  Looking  at  all  the  circumstances,  I  cannot  think 
that  the  charge  was  reasonable,  or  that  there  was  any  real  suspicion 
that  the  plaintiff  had  stolen  the  traces. 

Bramwell,  B.  I  am  of  the  same  opinion.  Tlie  law  is  correctly 
laid  down  in  Burn's  Justice.  It  is  not  every  idle  and  unreasonable 
charge  which  will  justify  an  arrest,  but  there  must  be  a  charge  not 
unreasonable.  The  Metropolitan  Police  Act,  2  &  3  Vict.  c.  47,  §  64, 
authorizes  "  any  constable  belonging  to  the  metropolitan  police  to 
take  into  custody,  witliout  warrant,  all  persons  whom  he  shall  have 
good  cause  to  suspect  of  having  committed  or  being  about  to  commit 
any  felony,  misdemeanor,  or  breach  of  the  peace."  This  does  not 
say  that  any  charge  is  enough,  but  by  implication  says  only  such 
a  charge  as  gives  the  constable  good  cause  to  suspect  the  person 
charged.  If  a  person  comes  to  a  constable  and  says  of  another 
simpliciter,  "  I  charge  this  man  with  felony,"  that  is  a  reasonable 
ground,  and  the  constable  ought  to  take  the  person  charged  into 
custody.  But  if  from  the  circumstances  it  appears  to  be  an  un- 
founded charge,  the  constable  is  not  only  not  bound  to  act  upon 
it,  but  he  is  responsil)1e  for  so  doing.  Here  the  question  is,  whether 
the  charge  was  not  unreasona1)le.  In  my  opinion  it  was  a  charge 
most  unreasonable.  I  agree  with  Mr.  Thompson  that  the  case  must 
be  treated  as  if  it  were  a  case  of  recent  possession ;  but  then  the 
other  circumstances  must  be  looked  at.  The  plaintiff  used  the 
traces  in  tbo  most  open  manner;  and,  when  asked,  he  told  1io\v  he  got 
possession  of  them,  and,  moreover,  the  person  who  claimed  them  was 
a  person  not  unlikely  to  have  lost  them. 


CHAP.    VII.]  FALSE    IMPRISONMENT.  297 

Watson,  B.  I  am  of  the  same  opinion.  There  is  no  doubt  about 
the  law  on  the  subject.  So  far  as  my  experience  goes,  it  always 
has  been  laid  down  by  the  judges  and  in  the  text-books  that  a 
constable  may  arrest  without  warrant  where  there  is  a  reasonable 
charge  of  felony.  The  question  here  is,  whether  there  was  a  reason- 
able charge.  I  think  there  was  not.  The  argument  as  to  reasonable 
and  probable  cause  has  no  application :  the  question  is,  whether  a 
reasonable  charge  was  made.  Now,  every  case  must  be  governed  by 
its  own  circumstances,  and  the  charge  must  be  reasonable  as  regards 
the  subject-matter  and  the  person  making  it.  If  an  idiot  made  a 
charge,  the  constable  ought  not  to  take  the  person  so  charged  into 
custody.  In  Isaacs  v.  Brand,  2  Stark.  N,  P.  167,  Lord  Ellenborough 
said  that  the  declaration  of  the  thief  did  not  justify  a  constable  in 
taking  a  person  into  custody  upon  a  charge  of  receiving  the  stolen 
goods.  I  have  attentively  considered  whether  the  charge  in  this 
case  was  reasonable,  because  it  is  of  the  utmost  importance  that  the 
police  throughout  the  whole  country  should  be  supported  in  the 
execution  of  their  duty,  —  indeed,  it  is  absolutely  essential  for  the 
prevention  of  crime;  on  the  other  hand,  it  is  equally  important  that 
persons  should  not  be  arrested  and  brought  before  magistrates  upon 
frivolous  or  untenable  charges.  Whether  the  question  of  reasonable 
charge  is  a  matter  of  law  for  the  judge,  or  a  matter  of  fact  for  the 
jury,  I  do  not  express  an  opinion,  as  that  was  left  to  us,  and  I  come 
to  the  conclusion  that  this  was  not  a  reasonable  charge.  It  is  not 
necessary  to  repeat  the  facts,  but,  taking  them  strongly  in  the  de- 
fendant's favor,  I  think  that  tliis  was  not  a  reasonable  charge,  and 
that  the  defendant  acted  contrary  to  his  duty  and  contrary  to  law 
in  arresting  the  plaintiff. 

Rule  discharged. 


ALLEN  V.  WEIGHT. 

Common  Pleas  of  England,  Nisi  Prius,  Trinity  Term,  1838.     8  Car.  &  P.  522. 

The  declaration  stated  that  the  defendant,  on  the  19th  of  March, 
1838,  assaulted  the  plaintiff,  and  forced  and  compelled  her  to  go 
into  the  public  street,  and  through  several  lanes,  &c.,  to  the  police 
station-house  in  Tower  Street,  Lambeth,  and  there  imprisoned  and 
kept  her,  without  any  reasonable  or  probable  cause,  for  twenty  hours, 
contrary  to  law  and  against  her  will ;  and  that  on  the  20th  of  March 
he  again  assaulted  her,  and  compelled  her  to  go  from  the  station- 
house  to  Union  Hall  Police  Office,  and  there  kept  and  detained  her 
for  six  hours,  whereby  she  was  not  only  hurt  and  injured  in  her 
body  and  mind,  but  also  exposed  and  injured  in  her  credit  and 
circumstances.  The  defendant  pleaded,  first,  not  guilty;  and,  sec- 
ondly, a  special  plea,  to  the  following  effect:   that  the  plaintiff  was  a 


298  ALLEN   V.   WRIGHT,  [CHAP.    VII. 

lodger  in  the  defendant's  house,  and  was  supplied  with  a  feather- 
bed, which,  during  a  portion  of  the  time,  was  made  by  the  plaintiff 
and  a  servant  of  the  defendant;  that  the  plaintiff,  while  she  was 
such  lodger,  demeaned  herself  in  an  improper,  irregular,  and  dis- 
reputable manner,  and  particularly  in  receiving  the  visits  of  and 
cohabiting  with  one  G.  D.,  and  that,  after  a  certain  time,  she  re- 
fused to  allow  the  servant  to  assist  in  making  the  bed,  and  always 
locked  the  door  of  the  room  when  she  went  out.  It  then  averred 
that  while  the  plaintiff  continued  as  lodger,  as  aforesaid,  seventy 
pounds  weight  of  feathers  were  stolen  from  the  bed;  and  that  the 
defendant,  having  good  and  probable  cause  of  suspicion,  and  vehe- 
mently suspecting  the  plaintiff  to  be  the  person  who  stole  them, 
caused  her  to  be  apprehended,  &c. 

From  the  evidence  on  the  part  of  the  plaintiff,  it  appeared  that  she 
resided  for  some  time  in  the  house  of  the  defendant  with  a  gentleman 
named  Davison,  who  passed  with  her  by  the  name  of  Gordon.  They 
left  in  the  evening  of  Friday,  the  16th  of  March,  between  six  and 
seven  o'clock;  and,  after  they  were  gone,  that  same  evening  a  friend 
of  the  gentleman  paid  the  defendant  for  him  several  claims  for  dam- 
age to  furniture,  &c.,  and  at  that  time  nothing  was  said  about 
any  loss  of  feathers  from  the  bed.  On  the  evening  of  Monday,  the 
19th  of  March,  about  ten  o'clock,  the  defendant  and  his  wife  were 
observed  by  a  policeman  on  duty  watching  the  house  No.  12  in  the 
Waterloo  Eoad.  The  defendant  addressed  the  policeman,  and  told 
him  he  wished  to  ascertain  whether  a  young  woman  named  Gordon 
was  living  there.  The  policeman  inquired  what  he  wanted  her  for, 
and  was  told  of  the  damage  sustained,  which  had  been  paid  for, 
and  also  that  there  was  a  large  quantity  of  feathers  missing  out  of 
the  bed.  The  policeman  knocked  at  the  door  and  gained  admittance 
to  the  house,  together  with  the  defendant.  The  plaintiff  inquired 
who  wanted  her,  and  on  being  told,  said  she  could  not  see  Mr.  Wright 
that  night.  It  was  tlien  about  twenty  minutes  past  ten.  The  police- 
man and  Mr.  Wright  followed  the  servant  upstairs.  They  saw  the 
plaintiff,  and  the  policeman  asked  the  defendant  if  that  was  the 
person.  He  said  yes,  it  was,  and  then  charged  her  with  stealing 
the  feathers  out  of  the  bed  in  his  house  while  he  was  lodging  there. 
The  policeman  told  her  that  she  must  go  with  him  to  the  station- 
house.  She  at  first  objected,  but  afterwards  went,  and  the  defendant 
made  his  charge  to  the  inspector,  anrl  she  was  locked  up  in  a  cell, 
where  she  remained  till  between  ten  and  eleven  the  next  morning.  A 
duplicate  for  a  bed  was  found  upon  her.  After  the  plaintiff  had 
been  locked  up,  the  policeman  went  back  with  the  defendant's  wife 
to  the  plaintiff's  lodgings,  but  nothing  belonging  to  the  defendant 
was  found  there.  The  plaintiff  was  taken  on  the  next  day  before  Mr. 
Trail,  at  Union  Hall,  who  discharged  her.  The  defendant  wished 
him  to  remand  her,  but  he  would  not. 


CHAP.   VII.j  FALSE   IMPRISONMENT.  299 

It  was  also  proved  that  the  gentleman  with  whom  the  plaintiff 
lived  supplied  her  with  adequate  means  of  support;  and  a  witness 
stated  that  he  had  examined  the  bed,  and  found  it  to  be  a  very  old 
one,  and  expressed  it  as  his  opinion  that  the  quantity  of  feathers 
in  it  was  sufficient  for  its  size. 

TiNDAL,  C.  J.,  after  stating  the  complaint  in  the  declaration  and 
the  defendant's  answer  to  it,  said:  That  is  an  answer  which  it  is 
incumbent  on  him  to  make  out  to  your  satisfaction,  because  he  has 
taken  the  law  into  his  own  hands,  by  not  acting  as  any  prudent  per- 
son would  have  done,  viz.,  going  before  a  magistrate  and  taking  out  a 
warrant.  At  all  events,  the  defendant  acted  in  a  very  indiscreet  man- 
ner (as  there  was  no  reason  to  conclude  that  the  plaintiff  had  any 
intention  to  abscond)  in  not  taking  the  usual  and  cautious  step  of 
having  the  case  investigated  by  a  magistrate  before  imprisoning  the 
party.  The  only  two  points  upon  which  you  must  be  satisfied  before 
you  can  find  a  verdict  for  the  defendant  are,  1st,  that  a  felony  had 
actually  been  committed;  that  some  person  or  other  had  stolen,  ac- 
cording to  the  evidence,  about  half  the  feathers  from  the  bed;  and 
2d,  that  the  circumstances  were  such  that  you  yourselves,  or  any 
reasonable  person,  acting  without  passion  and  prejudice,  would  have 
fairly  suspected  the  plaintiff  of  being  the  person  who  did  it.  If  you 
think  the  circumstances  were  such,  you  will  find  your  verdict  for  the 
defendant ;  if  you  do  not,  you  will  find  your  verdict  for  the  plaintiff, 
and  give  her  such  reasonable  damages  as  you  think  she  is  entitiod  to. 

Verdict  for  the  plaintiff. 


300  STEPHENS  V.  MYEES.  £CHAP.   VIII. 


CHAPTEE  VIII. 
ASSAULT   AND   BATTEEY. 

STEPHENS  V.  MYEES. 
Common  Pleas  of  England,  Nisi  Prius,  Trinity  Term,  1830.    4  Car.  &  P.  349, 

Assault.  The  declaration  stated  that  the  defendant  threatened 
and  attempted  to  assault  the  plaintiff.    Plea,  not  guilty. 

It  appeared  that  the  plaintiff  was  acting  as  chairman  at  a  parish 
meeting,  and  sat  at  the  head  of  a  table,  at  which  table  the  defendant 
also  sat,  there  being  six  or  seven  persons  between  him  and  the  plain- 
tiff. The  defendant,  in  the  course  of  some  angry  discussion  which 
took  place,  having  been  very  vociferous,  and  having  interrupted  the 
proceedings  of  the  meeting,  a  motion  was  made  that  he  should  be 
turned  out,  which  was  carried  by  a  very  large  majority.  Upon  this 
the  defendant  said  he  would  rather  pull  the  chairman  out  of  the 
chair  than  be  turned  out  of  the  room,  and  immediately  advanced  with 
his  fist  clenched  toward  the  chairman,  but  was  stopped  by  the  church- 
warden, who  sat  next  but  one  to  the  chairman,  at  a  time  when  he 
was  not  near  enough  for  any  blow  he  might  have  meditated  to  reach 
the  plaintiff;  but  the  witnesses  said  that  it  seemed  to  them  that  he 
was  advancing  with  an  intention  to  strike  the  chairman. 

TiNDAL,  C.  J.,  in  his  summing  up,  said :  It  is  not  every  threat,  when 
there  is  no  actual  personal  violence,  that  constitutes  an  assault;  there 
must  in  all  cases  be  the  means  of  carrying  the  threat  into  effect.  The 
question  I  shall  leave  to  you  will  be,  whether  the  defendant  was  ad- 
vancing at  the  time,  in  a  threatening  attitude,  to  strike  the  chairman, 
60  that  his  blow  would  almost  immediately  have  reached  the  chair- 
man, if  he  had  not  been  stopped.  Then,  though  he  was  not  near 
enough  at  the  time  to  have  struck  him,  yet  if  he  was  advancing  with 
that  intent,  I  think  it  amounts  to  an  assault  in  law.  If  he  was  so 
advancing  that,  within  a  second  or  two  of  time,  he  would  have  reached 
the  plaintiff,  it  seems  to  me  it  is  an  assault  in  law.  If  you  think  he 
was  not  advancing  to  strike  the  plaintiff,  then  only  can  you  find  your 
vorflict  for  Jhc  doftmdant;  otherwise,  you  Tuust  find  it  for  the  plain- 
tiff, and  give  him  such  damages  as  you  think  the  nature  of  the  case 
requires. 

Verdict  for  the  plaintijf. 


CIIi\_P.    Vni.]  ASSAULT   AND   BATTERY.  301 


COLE  V.  TUENER. 

King's  Bench  of  England,  Nisi  Prins,  Easter  Term,  1705.     6  Mod.  149;   s.  c. 

Holt,  108. 

Holt,  C.  J.,  upon  evidence  in  trespass  for  assault  and  battery, 
declared, 

First,  that  the  least  touching  of  another  in  anger  is  a  battery. 

Secondl}^,  if  two  or  more  meet  in  a  narrow  passage,  and,  without 
any  violence  or  design  of  harm,  the  one  touches  the  other  gently,  it 
will  be  no  battery. 

Thirdly,  if  any  of  them  use  violence  against  the  other,  to  force 
his  way  in  a  rude,  inordinate  manner,  it  will  be  a  battery;  or  any 
struggle  about  the  passage  to  such  degree  as  may  do  hurt  will  be  a 
battery. 


BROWN  V.  KENDALL. 
Supreme  Court  of  Massachusetts,  October,  1850.    6  Cush.  292. 

This  was  an  action  of  trespass  for  assault  and  battery,  originally 
commenced  against  George  K.  Kendall,  the  defendant,  who  died 
pending  the  suit,  and  his  executrix  was  summoned  in. 

It  appeared  in  evidence,  on  the  trial,  which  was  before  Wells,  C.  J., 
in  the  Court  of  Common  Pleas,  that  two  dogs  belonging  to  the  plain- 
tiff and  the  defendant,  respectively,  were  fighting  in  the  presence 
of  their  masters;  that  the  defendant  took  a  stick  about  four  feet 
long,  and  commenced  beating  the  dogs  in  order  to  separate  them; 
that  the  plaintiff  was  looking  on,  at  the  distance  of  about  a  rod, 
and  that  he  advanced  a  step  or  two  towards  the  dogs.  In  their 
struggle,  the  dogs  approached  the  place  where  the  plaintiff  was  stand- 
ing. The  defendant  retreated  backwards  from  before  the  dogs,  strik- 
ing them  as  he  retreated;  and  as  he  approached  the  plaintiff,  with 
his  back  towards  him,  in  raising  his  stick  over  his  shoulder,  in  order 
to  strike  the  dogs,  he  accidentally  hit  the  plaintiff  in  the  eye,  inflicting 
upon  him  a  severe  injury. 

Whether  it  was  necessary  or  proper  for  the  defendant  to  interfere 
in  the  fight  between  the  dogs ;  whether  the  interference,  if  called  for, 
was  in  a  proper  manner,  and  what  degree  of  care  was  exercised  by 
each  party  on  the  occasion,  —  were  the  subject  of  controversy  between 
the  parties,  upon  all  the  evidence  in  the  case,  of  which  the  foregoing 
is  an  outline. 

The  defendant  requested  the  judge  to  instruct  the  jury,  that  "  if 
both  the  plaintiff  and  defendant  at  the  time  of  the  blow  were  using 
ordinary  care,  or  if  at  that  time  the  defendant  was  using  ordinary 


302  BROWN    V.    KENDALL.  [CHAP.    VIII. 

care  and  the  plaintiff  was  not,  or  if  at  that  time  both  plaintiff  and  de- 
fendant were  not  using  ordinary  care,  then  the  plaintiff  could  not 
recover." 

The  defendant  further  requested  the  judge  to  instruct  the  jury, 
that,  "under  the  circumstances,  if  the  plaintiff  was  using  ordinary 
care  and  the  defendant  was  not,  the  plaintiff  could  not  recover,  and 
that  the  burden  of  proof  on  all  these  propositions  was  on  the  plain- 
tiff." 

The  judge  declined  to  give  the  instructions,  as  above  requested,  but 
left  the  case  to  the  jury  under  the  following  instructions :  "  If  the 
defendant,  in  beating  the  dogs,  was  doing  a  necessary  act,  or  one 
which  it  was  his  duty  under  the  circumstances  of  the  case  to  do, 
and  was  doing  it  in  a  proper  way ;  then  he  was  not  responsible  in  thia 
action,  provided  he  was  using  ordinary  care  at  the  time  of  the  blow. 
If  it  was  not  a  necessary  act ;  if  he  was  not  in  duty  bound  to  attempt 
to  part  the  dogs,  but  might  with  propriety  interfere  or  not  as  he 
chose;  the  defendant  was  responsible  for  the  consequences  of  the 
blow,  unless  it  appeared  that  he  was  in  the  exercise  of  extraordinary 
care,  so  that  the  accident  was  inevitable,  using  the  word  inevitable 
not  in  a  strict  but  a  popular  sense." 

"  If,  however,  the  plaintiff,  when  he  met  with  the  injury,  was  not 
in  the  exercise  of  ordinary  care,  he  cannot  recover,  and  this  rule  ap- 
plies, whether  the  interference  of  the  defendant  in  the  fight  of  the 
dogs  was  necessary  or  not.  If  the  jury  believe,  that  it  was  the  duty 
of  the  defendant  to  interfere,  then  the  burden  of  proving  negligence 
on  the  part  of  the  defendant,  and  ordinary  care  on  the  part  of  the 
plaintiff,  is  on  the  plaintiff.  If  the  jury  believe,  that  the  act  of 
interference  in  the  fight  was  unnecessary,  then  the  burden  of  proving 
extraordinary  care  on  the  part  of  the  defendant,  or  want  of  ordinary 
care  on  the  part  of  the  plaintiff,  is  on  defendant." 

The  jury  under  these  instructions  returned  a  verdict  for  the 
plaintiff ;  whereupon  the  defendant  alleged  exceptions. 

Shaw,  C.  J.  This  is  an  action  of  trespass,  vi  et  armis,  brought  by 
George  Brown  against  George  K.  Kendall,  for  an  assault  and  battery ; 
and  the  original  defendant  having  died  pending  the  action,  his 
executrix  has  been  summoned  in.  The  rule  of  the  common  law,  by 
which  this  action  would  abate  by  the  death  of  either  party,  is  re- 
versed in  this  commonwealth  by  statute,  which  provides  that  actions 
of  trespass  for  assault  and  battery  shall  survive.  Kev.  Sts.  c.  93, 
§  7.^ 

The  facts  set  forth  in  the  bill  of  exceptions  preclude  the  supposi- 
tion, that  the  blow,  inflicted  by  the  hand  of  the  defendant  upon  the 
person  of  the  plaintiff,  was  intentional.  The  whole  case  proceeds  on 
the  assumption,  tliat  the  damage  sustained  by  the  plaintiff,  from  the 
stick  held  l)y  the  defendant,  was  inadvertent  and  unintentional;  and 

»  Kev.  Laws,  c.   171,  {  1. 


CHAP.    VIII.]  ASSAULT    AND   BATTERY.  303 

the  case  involves  the  question  how  far,  and  under  what  qualifications, 
the  party  by  whose  unconscious  act  the  damage  was  done  is  responsible 
for  it.  We  use  the  term  "  unintentional  "  rather  than  involuntary,  be- 
cause in  some  of  the  cases  it  is  stated,  that  the  act  of  holding  and 
using  a  weapon  or  instrument,  the  movement  of  which  is  the  im- 
mediate cause  of  hurt  to  another,  is  a  voluntary  act,  although  its 
particular  effect  in  hitting  and  hurting  another  is  not  within  the 
purpose  or  intention  of  the  party  doing  the  act. 

It  appears  to  us,  that  some  of  the  confusion  in  the  cases  on  this 
subject  has  grown  out  of  the  long-vexed  question,  under  the  rule  of 
the  common  law,  whether  a  party's  remedy,  where  he  has  one,  should 
be  sought  in  an  action  of  the  case,  or  of  trespass.  This  is  very 
distinguishable  from  the  question,  whetlier  in  a  given  case,  any  action 
will  lie.  The  result  of  these  cases  is,  that  if  the  damage  complained 
of  is  the  immediate  effect  of  the  act  of  the  defendant,  trespass  vi 
et  armis  lies;  if  consequential  only,  and  not  immediate,  case  is  the 
proper  remedy.  Leame  v.  Bray,  3  East,  593 ;  Hugget  v.  Montgomery, 
2  N.  E.  446,  Day's  Ed.  and  notes. 

In  these  discussions  it  is  frequently  stated  by  judges,  that  when  one 
receives  injury  from  the  direct  act  of  another,  trespass  will  lie.  But 
we  think  this  is  said  in  reference  to  the  question,  whether  trespass 
and  not  case  will  lie,  assuming  that  the  facts  are  such,  that  some 
action  will  lie.  These  dicta  are  no  authority,  we  think,  for  holding, 
that  damage  received  by  a  direct  act  of  force  from  another  will  be 
sufficient  to  maintain  an  action  of  trespass,  whether  the  act  was  law- 
ful or  unlawful,  and  neither  wilful,  intentional,  nor  careless.  In  the 
principal  case  cited,  Leame  v.  Bray,  the  damage  arose  from  the  act 
of  the  defendant,  in  driving  on  the  wrong  side  of  the  road,  in  a  dark 
night,  which  was  clearly  negligent  if  not  unlawful.  In  the  course 
of  the  argument  of  that  case  (p.  595),  Lawrence.  J.,  said:  "There 
certainly  are  cases  in  the  books,  where,  the  injury  being  direct  and 
immediate,  trespass  has  been  holden  to  lie,  though  the  injury  was  not 
intentional."  The  term  "  injury "  implies  something  more  than 
damage;  but,  independently  of  that  consideration,  the  proposition 
may  be  true,  because,  though  the  injury  was  unintentional,  the  act 
may  have  been  unlawful  or  negligent,  and  the  cases  cited  by  him 
are  perfectly  consistent  with  that  supposition.  So  the  same  learned 
judge  in  the  same  case  says  (p.  597),  "  No  doubt  trespass  lies  against 
one  who  drives  a  carriage  against  another,  whether  done  wilfully  or 
not."  But  he  immediately  adds,  "  Suppose  one  who  is  driving  a  car- 
riage is  negligently  and  heedlessly  looking  about  him,  without  attend- 
ing to  the  road  when  persons  are  passing,  and  thereby  runs  over 
a  child  and  kills  him,  is  it  not  manslaughter?  and  if  so,  it  must  be 
trespass ;  for  every  manslaughter  includes  trespass ; "  showing  what 
he  understood  by  a  case  not  wilful. 

We  think,  as  the  result  of  all  the  authorities,  the  rule  is  correctly 


304  BROWN    V.    KENDALL.  [CHAP.   VIH. 

stated  by  Mr.  Greenleaf,  that  the  plaintiff  must  come  prepared  with 
evidence  to  show  either  that  the  intention  was  unlawful,  or  that  the 
defendant  was  in  fault;  for  if  the  injury  was  unavoidable,  and  the 
conduct  of  the  defendant  was  free  from  blame,  he  will  not  be  liable. 
2  Greenl.  Ev.  §§  85  to  93 ;  Wakeman  v.  Robinson,  1  Bing.  213.  If, 
in  the  prosecution  of  a  lawful  act,  a  casualty  purely  accidental  arises, 
no  action  can  be  supported  for  an  injury  arising  therefrom.  Davis 
V.  Saunders,  2  Chit.  R.  639;  Com.  Dig.  Battery,  A  (Day's  Ed.)  and 
notes;  Vincent  v.  Stinehour,  7  Verm.  69.  In  applying  these  rules 
to  the  present  case,  we  can  perceive  no  reason  why  the  instructions 
asked  for  by  the  defendant  ought  not  to  have  been  given;  to  this 
effect,  that  if  both  plaintiff  and  defendant  at  the  time  of  the  blow 
were  using  ordinary  care,  or  if  at  that  time  the  defendant  was  using 
ordinary  care,  and  the  plaintiff  was  not,  or  if  at  that  time,  both  the 
plaintiff  and  defendant  were  not  using  ordinary  care,  then  the  plain- 
tiff could  not  recover. 

In  using  this  term,  ordinary  care,  it  may  be  proper  to  state,  that 
what  constitutes  ordinary  care  will  vary  with  the  circumstances  of 
cases.  In  general,  it  means  that  kind  and  degree  of  care,  which 
prudent  and  cautious  men  would  use,  such  as  is  required  by  the  exi- 
gency of  the  case,  and  such  as  is  necessary  to  guard  against  probable 
danger.  A  man,  who  should  have  occasion  to  discharge  a  gun,  on  an 
open  and  extensive  marsh,  or  in  a  forest,  would  be  required  to  use 
less  circumspection  and  care,  than  if  he  were  to  do  the  same  thing 
in  an  inhabited  town,  village,  or  city.  To  make  an  accident,  or 
casualty,  or  as  the  law  sometimes  states  it,  inevitable  accident,  it 
must  be  such  an  accident  as  the  defendant  could  not  have  avoided 
by  the  use  of  the  kind  and  degree  of  care  necessary  to  the  exigency, 
and  in  the  circumstances  in  which  he  was  placed. 

We  are  not  aware  of  any  circumstances  in  this  case,  requiring  a 
distinction  between  acts  which  it  was  lawful  and  proper  to  do,  and 
acts  of  legal  duty.  There  are  cases,  undoubtedly,  in  which  officers 
are  bound  to  act  under  process,  for  the  legality  of  which  they  are 
not  responsible,  and  perhaps  some  others  in  which  this  distinction 
would  be  important.  We  can  have  no  doubt  that  the  act  of  the  de- 
fendant in  attempting  to  part  tlie  fighting  dogs,  one  of  which  was 
his  own,  and  for  the  injurious  acts  of  which  he  might  be  responsible, 
was  a  lawful  and  proper  act,  which  he  might  do  by  proper  and  safe 
means.  If,  then,  in  doing  this  act,  using  due  care  and  all  proper 
precautions  necessary  to  the  exigency  of  the  case,  to  avoid  hurt  to 
others,  in  raising  his  stick  for  that  purpose,  he  accidentally  hit  the 
plaintiff  in  his  eye,  and  wounded  him,  this  was  the  result  of  pure 
accident,  or  was  involuntary  and  unavoidable,  and  therefore  the 
action  would  not  lie.  Or  if  the  flofendant  was  chargoahlo  with  some 
negligence,  and  if  tbe  phaintiff  was  also  cbargoablo  with  negligence, 
we  think  the  plaintiff  cannot  recover  without  showing  that  the  dam- 


CHAP,    VIII.]  ASSAULT    AND   BATTERY.  305 

age  was  caused  wholly  by  the  act  of  the  defendant,  and  that  the  plain- 
tiff's own  negligence  did  not  contribute  as  an  efficient  cause  to  pro- 
duce it. 

The  court  instructed  the  jury,  that  if  it  was  not  a  necessary  act, 
and  the  defendant  was  not  in  duty  bound  to  part  the  dogs,  but  might 
with  propriety  interfere  or  not  as  he  chose,  the  defendant  was  re- 
sponsible for  the  consequences  of  the  blow,  unless  it  appeared  that 
he  was  in  the  exercise  of  extraordinary  care,  so  that  the  accident  was 
inevitable,  using  the  word  not  in  a  strict  but  a  popular  sense.  This 
is  to  be  taken  in  connection  with  the  charge  afterwards  given,  that 
if  the  jury  believed,  that  the  act  of  interference  in  the  fight  was  un- 
necessary (that  is,  as  before  explained,  not  a  duty  incumbent  on  the 
defendant),  then  the  burden  of  proving  extraordinary  care  on  the 
part  of  the  defendant,  or  want  of  ordinary  care  on  the  part  of  plain- 
tiff, was  on  the  defendant. 

The  court  are  of  opinion  that  these  directions  were  not  conform- 
able to  law.  If  the  act  of  hitting  the  plaintiff  was  unintentional  on 
the  part  of  the  defendant,  and  done  in  the  doing  of  a  lawful  act,  then 
the  defendant  was  not  liable,  unless  it  was  done  in  the  want  of  exer- 
cise of  due  care,  adapted  to  the  exigency  of  the  case,  and  therefore 
such  want  of  due  care  became  part  of  the  plaintiff's  case,  and  the 
burden  of  proof  was  on  the  plaintiff  to  establish  it.  2  Greenl.  Ev. 
§  85;  Powers  v.  Eussell,  13  Pick.  69,  76;  Tourtellot  v.  Rosebrook, 
11  Met.  460. 

Perhaps  the  learned  judge,  by  the  use  of  the  term  extraordinary 
care,  in  the  above  charge,  explained  as  it  is  by  the  context,  may  have 
intended  nothing  more  than  that  increased  degree  of  care  and  dili- 
gence, which  the  exigency  of  particular  circumstances  might  require, 
and  which  men  of  ordinary  care  and  prudence  would  use  under  like 
circumstances,  to  guard  against  danger.  If  such  was  the  meaning 
of  this  part  of  the  charge,  then  it  does  not  differ  from  our  views,  as 
above  explained.  But  we  are  of  opinion,  that  the  other  part  of  the 
charge,  that  the  burden  of  proof  was  on  the  defendant,  was  incor- 
rect. Those  facts  which  are  essential  to  enable  the  plaintiff  to  re- 
cover, he  takes  the  burden  of  proving.  The  evidence  may  be  offered 
by  the  plaintiff  or  by  the  defendant;  the  question  of  due  care,  or 
want  of  care,  may  be  essentially  connected  with  the  main  facts,  and 
arise  from  the  same  proof;  but  the  effect  of  the  rule,  as  to  the  bur- 
den of  proof,  is  this,  that  when  the  proof  is  all  in,  and  before  the 
jury,  from  whatever  side  it  comes,  and  whether  directly  proved,  or 
inferred  from  circumstances,  if  it  appears  that  the  defendant  was 
doing  a  lawful  act,  and  unintentionally  hit  and  hurt  the  plaintiff, 
then  unless  it  also  appears  to  the  satisfaction  of  the  jury  that  the 
defendant  is  chargeable  with  some  fault,  negligence,  carelessness,  or 
want  of  prudence,  the  plaintiff  fails  to  sustain  the  burden  of  proof, 
and  is  not  entitled  to  recover. 

New  trial  ordered. 


306  DREW   V.    COMSTOCK.  [CHAP.    VIII. 

DEEW    V.    COMSTOCK. 
Supreme  Court  of  Michigan,  July,  1885.    57  Mich.  176. 

The  case  is  stated  in  the  opinion  of  the  court. 

Campbell,  J.  Drew  recovered  $633  damages  against  defendant 
for  assault  and  battery.  Defendant  brings  error.  The  circumstances, 
so  far  as  they  are  not  disputed,  were  these :  Defendant  became  owner 
of  property  in  Big  Eapids,  that  had  been  mill  property,  lying  west 
of  the  Grand  Eapids  &  Indiana  Eailroad.  This  was  once  owned  by 
one  Moon,  and  while  he  so  owned  it  a  spur  track  had  been  taken  from 
a  side  track,  connected  by  switch  with  the  main  track,  so  as  to  lead 
from  the  mill  to  the  side  track  and  thence  out  upon  the  main  road, 
and  with  no  other  means  of  egress.  This  spur  had  been  so  built  that 
one  of  the  rails  was  on  Moon's  land,  and  it  was  built  to  accommodate 
the  mill,  but  was  used  more  or  less  to  back  cars  on.  It  was  built  in 
1873.  In  the  mean  time  it  had  become  dilapidated  and  the  ties  had 
rotted,  so  that  at  the  time  of  this  difficulty  it  was  unfit  for  use  without 
repair. 

Plaintiff  bought  the  property  in  1880,  and  in  the  spring  of  1881 
went  on  to  build  a  mill,  which  he  got  ready  for  use  in  October,  1881. 
There  was  a  siding  of  the  Detroit  &  Lansing  Eailroad  which  con- 
nected with  his  mill  premises,  and  over  which  he  shipped  lumber. 
The  siding  was  so  near  the  spur  that  cars  upon  the  latter  would  inter- 
fere with  those  on  the  siding.  Defendant  had  desired  the  Grand 
Eapids  &  Indiana  Eailroad  to  remove  the  spur  from  his  land,  and 
some  preparation  had  been  made  to  do  so.  On  the  evening  of  the 
12th  of  October,  1881,  plaintiff,  who  was  section  foreman  of  track 
repairing  for  the  Grand  Eapids  &  Indiana  Eailroad,  spiked  down 
the  switch  from  the  spur  to  the  side  track  of  that  road,  to  prevent 
any  use  of  it,  and  had  some  talk  with  defendant,  and  from  that  or 
other  means  understood  that  he  did  not  desire  the  spur  to  be  used 
or  to  remain  on  his  land. 

On  the  13th  of  October,  in  the  morning,  plaintiff  came  with  a 
gang  of  men,  and  proceeded  to  renew  the  spur  track  by  taking  out 
the  old  ties  and  putting  in  new  and  sound  ones  throughout.  Defend- 
ant forbade  his  doing  so,  and  he  persisted.  After  coming  twice  and 
ordering  plaintiff  off,  with  his  reasons  for  doing  so,  plaintiff  still 
insisting  that  he  would  refit  the  track,  defendant  came  a  third  time 
and  pointed  out  his  line  and  insisted  it  should  not  be  trespassed  on. 

At  this  point  the  controversy  begins.  It  is  claimed  by  plaintiff 
that  defendant  pushed  him  off,  and  before  he  could  entirely  recover 
himself  struck  him  over  the  forehead  with  a  stick,  and  wounded  him 
over  the  eye,  so  that  he  was  struck  down ;  and  that  this  wound  was 
a  permanent  injury  of  a  serious  character.     Defendant  claims  that 


CHAP.    VIII.]  ASSAULT    AND   BATTERY.  307 

the  stick  was  a  sawed-off  broom-handle  that  he  had  picked  up  in  his 
mill  to  use  as  a  staff,  as  he  had  been  lamed;  and  that  he  struck  to 
ward  off  an  apparent  effort  by  plaintiff  to  strike  him  with  an  uplifted 
shovel,  and  did  not  aim  to  do  him  injury,  but  tlie  stick  glanced  and 
hit  him  as  it  fell.  The  stick  was  described  by  plaintiff  as  a  hard-wood 
stick  about  four  feet  long.  It  appears  to  have  been  used  with  only 
one  hand.  When  it  was  used,  defendant's  left  side  was  nearest  plain- 
tiff, who  claims  he  turned  round  to  face  him.  The  blow  fell  on  the 
further  side  of  plaintiff's  forehead,  immediately  over  his  left  eye. 
It  was  evidently  struck  by  the  rough  end  of  the  stick,  as  the  wound, 
as  described  by  Dr.  Hendryk,  the  physician  who  dressed  it,  was  only 
a  flesh  wound,  less  than  an  inch  in  length,  which  bled  very  freely, 
but  involved  no  injury  to  either  bone  or  periosteum,  which  had  no 
complications  in  healing,  and  which  he  did  not  regard  as  a  permanent 
injury. 

It  appears  from  the  record  that  the  case  became  greatly  magnified 
by  some  extraneous  matters,  and  there  was  much  in  the  course  of 
the  trial  which  the  court  evidently  regarded  as  of  doubtful  propriety 
and  let  in  with  some  hesitation.  We  shall  however  confine  ourselves 
to  such  questions  as  arose  upon  the  charge,  as  we  can  hardly  believe 
that  a  new  trial  will  be  allowed  to  be  affected  by  the  exaggerations 
which  seem  to  have  made  out  of  what  no  physician  has  deemed  a  very 
serious  wound,  a  murderous  injury. 

The  whole  case,  so  far  as  the  alleged  assault  is  concerned,  involved 
but  a  few  questions.  It  is  not  disputed,  and  the  court  held,  that  the 
plaintiff  was  actually  intruding  and  trespassing  on  defendant's 
ground,  with  a  design  of  permanent  occupancy.  But  the  court  also 
held  that  defendant  had  no  right  to  use  any  degree  of  force  to  keep 
off  the  trespassers,  if  the  railroad  company,  under  whom  plaintiff 
had  to  justify,  claimed  rights  there.  And  the  court  held  that  there 
was  evidence  of  such  a  bona  fide  claim,  and  further  that  if  defendant 
had  no  right  to  push  plaintiff  in  the  first  instance  he  was  in  fault 
in  striking  the  blow  and  must  pay  compensatory  damages.  He  also 
referred  several  times  to  the  claim  of  damages  of  $5000  in  the  decla- 
ration as  the  only  absolute  limit  to  the  jury's  discretion,  and  made 
a  further  statement  in  these  words :  "  A  verdict  in  this  case  must 
cover  all  time.  Mr.  Drew  can  never  sue  again  for  any  damage,  no 
matter  if  he  was  prostrated  on  his  bed  during  his  lifetime  after  this 
from  the  effects  of  it.  One  action  is  all  that  can  be  brought  in  that 
case."  The  earlier  part  of  the  charge  practically  compelled  the  jury 
to  find  some  damages. 

Some  other  portions  of  the  charge  are  complained  of,  but  as  they 
mostly  bear  upon  what  is  raised  by  these  rulings,  we  need  not  consider 
them  separately. 

In  opening  the  summing-up,  after  referring  to  the  case  as  one  of 
great  importance  because  of  tlie  large  claim  of  damages,  the  court 


308  DREW   V.    COMSTOCK.  [CHAP.    VIII. 

told  the  jury  there  was  no  dispute  "  as  to  the  fact  that  an  assault 
and  battery  was  committed,  and  the  time  when  it  was  committed, 
and  the  person  by  whom  and  upon  whom  the  injury  was  committed." 
An  assault  was  then  defined  as  involving  an  attempt  "  with  unlawful 
force"  to  inflict  bodily  injury,  and  a  battery  as  an  actual  injury, 
which  in  this  case  was  a  real  one.  And  in  the  same  connection  the 
jury  were  told,  as  they  were  afterwards  told,  that  they  had  entire 
discretion  as  to  damages  within  the  sum  claimed  in  the  declaration. 

When  the  jury  were  told  that  defendant  had  committed  an  assault 
and  battery,  and  that  every  assault  and  battery  was  a  use  of  unlawful 
force,  they  were  practically  told  to  find  for  the  plaintiff,  and  give 
discretionary  damages;  and  when  they  had  their  attention  subse- 
quently called  to  the  fact  that  plaintiff  could  never  sue  again,  al- 
though he  might  be  prostrated  on  his  bed  during  his  whole  lifetime, 
they  were  authorized  to  act  on  the  theory  that  the  injury  might 
produce  future  and  permanent  mischief  not  yet  developed,  and  might 
assess  their  damages  on  that  possibility.  All  of  this  was  erroneous. 
There  was  a  dispute  whether  the  blow  was  aimed  at  all  against  plain- 
tiff's safety,  or  directly  against  his  person.  The  whole  body  of  the 
controversy  bore  upon  its  legality;  and  there  was  no  testimony  what- 
ever which  tended  to  show  that  all  the  effects  of  the  wound  were  not 
already  developed  or  the  wound  not  entirely  healed  without  danger 
of  reopening. 

If  an  assault  is  always  unlawful,  then  it  was  not  admitted  by  de- 
fendant that  he  had  committed  one.  But  the  definition  is  incorrect. 
An  assault  may  be  entirely  lawful,  as  either  excusable  or  justifiable, 
and  it  involves  every  "  attempt "  or  offer,  with  force  and  violence, 
to  do  corporal  hurt  to  another.  Toml.  Law  Diet.  "  Assault."  The 
jury  therefore  were  misled  in  the  outset  into  an  assumption  which, 
from  the  peculiar  amount  of  the  verdict,  does  not  seem  to  have  been 
corrected.  And  while  there  are  in  subsequent  instructions  some 
explanations  which  bear  in  another  direction,  they  were  so  qualified 
as  to  leave  room  to  the  end  for  the  original  impression. 

Upon  the  question  of  the  original  trespass  it  appears  by  plaintiff's 
own  showing  that  he  knew  defendant  disputed  the  right  of  the  com- 
pany. He  could  not  justify  his  own  entry  unless  the  company  could  do 
so,  as  he  did  not  enter  in  his  own  right.  We  find  nothing  in  the  record 
which  tends  to  show  either  that  tlie  company  was  in  ignorance  of  the 
exact  condition  of  the  title  or  that  it  claimed  any  adverse  holding. 
So  far  as  there  is  any  evidence  at  all,  it  bears  in  the  other  direction. 
It  appears,  without  any  contradictory  evidence  that  we  have  dis- 
covered, that  the  only  persons  wlio  had  any  riglit  to  act  for  the  rail- 
road proposed  to  respect  defendant's  claim.  It  would  be  unjust  to 
the  corporation  to  attribute  to  it  a  design  which  was  unlawful,  with- 
out proof  that  some  responsible  agent  was  engaged  in  it.  Plaintiff, 
according  to  his  own  statement,  communicated  with  no  one  but  an 


CHAP.    VIII.]  ASSAULT   AND   BATTERY.  309 

assistant  roadinaster  and  a  master  of  transportation,  neither  of  whom 
can  be  presumed  to  have  autliority  to  represent  the  company  in  claim- 
ing disputed  titles,  and  he  also  says  that  he  proposed  to  go  forward 
on  his  own  responsibility  without  reference  to  tlieir  orders. 

Under  such  circumstances  it  is  difficult  to  see  where  there  is  any 
room  for  justification  shown,  or  for  holding  him  to  be  anything  but 
a  trespasser  on  his  own  responsibility.  And  it  cannot  be  questioned 
that  the  entry  of  plaintiff  and  his  gang  of  men  to  relay  the  track,  if 
tortious  at  all,  in  spite  of  any  opposition  by  defendant,  was  a  very 
serious  wrong  ^  directly  calculated  to  provoke  violence. 

There  was  nothing  in  the  push  asserted  to  have  been  given  in  the 
first  place  to  amount  to  a  wrongful  assault  on  a  trespasser,  or  to 
justify  force  on  the  part  of  the  plaintiff.  And  if  defendant  used  his 
stick  to  defend  himself  from  what  seemed  to  him  to  be  an  assault, 
there  was  no  wrong  in  doing  so.  And  if  the  act  of  plaintiff  was  such 
as  appeared  to  involve  serious  bodily  harm  or  peril  to  his  life,  we  are 
not  prepared  to  say  that  he  would  be  deprived  of  his  right  of  self- 
defence  by  even  a  technical  unlawful  assault  which  did  no  damage. 

All  these  considerations  were  in  the  case,  and  upon  any  theory  of 
the  conduct  of  the  parties  the  instructions  went  too  far.  Passing  arfv'' 
other  grounds  of  error  as  unnecessary  to  be  dealt  with,  the  judgment 
must  for  these  be  reversed  with  costs  and  a 

New  trial  granted. 

1  To  enter  "with  a  strong  hand  or  a  multitude  of  people,"  that  is,  to  make 
forcible  entry  was  made  a  criminal  offence  as  long  ago  as  1381,  and  such  it  is 
generally  in  this  country. 


^)0  MAETIN    V.    PAYNE.  [CHAP.    IX. 


CHAPTER   IX. 

SEDUCTION    AND    ENTICEMENT. 

MAETIN    V.    PAYNE. 
Supreme  Court  of  New  York,  October,  1812.    9  Johns.  387. 

This  was  an  action  of  trespass  on  the  case  for  debauching  and 
getting  with  child  Lanah,  the  daughter  and  servant  of  the  plaintiff, 
by  which  he  lost  her  service,  and  was  obliged  to  pay  a  large  sum  of 
money  for  the  expenses  of  her  lying-in,  &c. 

The  cause  was  tried  at  the  Washington  Circuit,  in  June,  1811, 
before  Mr.  Justice  Spencer.  At  the  trial  the  daughter  of  the  plain- 
tiff was  produced  as  a  witness  and  proved  the  seduction  and  preg- 
nancy, &c. ;  that  at  the  time  of  the  seduction,  which  was  in  the 
spring  of  the  year  1810,  she  was  nineteen  years  of  age,  and  lived  in 
the  house  of  her  uncle,  with  whom  she  had  resided  from  the  autumn 
of  1809.  She  worked  for  her  uncle  when  she  pleased,  and  was  to 
receive  from  him,  for  her  work,  one  shilling  per  day.  She  also  worked 
for  herself,  and  expended  all  her  earnings  in  clothes  and  necessaries 
for  herself,  as  she  saw  fit.  There  was  no  agreement  for  her  continu- 
ance in  her  uncle's  house  for  any  particular  time;  but  she  went  to 
reside  with  him  on  the  terms  above  mentioned,  with  the  consent  of 
her  father.  The  defendant  paid  his  addresses  to  her  while  she  was 
at  her  uncle's,  and  she  expected  to  have  married  him,  and  had  at 
that  time  no  expectation  of  returning  to  her  father's  house  to  reside. 
During  the  period  of  her  residence  with  her  uncle  she  occasionally 
visited  her  father's  house,  remaining  there  a  week  at  a  time.  Imme- 
diately after  she  was  debauched  she  returned  to  her  father,  who  sup- 
ported her,  and  was  at  the  expense  of  her  lying-in,  &c.  It  did  not 
appear  that  the  father  had  done  any  act  dispensing  with  his  daugh- 
ter's service,  other  than  consenting  to  her  remaining  with  her  aunt. 

The  defendant's  counsel  objected  that  the  plaintiff  was  not  entitled 
to  recover;  but  the  judge,  without  deciding  the  question,  permitted 
the  cause  to  go  to  the  jury,  who  found  a  verdict  for  the  plaintiff, 
subject  to  the  opinion  of  the  court,  on  the  facts  in  the  case  as  above 
stated. 

Si'KNCKU,  J.  The  case  of  Dean  v.  Peel,  5  East,  49,  is  against  the 
action.  It  was  tbcre  held  that  the  daughter  being  in  tlie  service  of 
another,  and  having  no  animus  revertendi,  the  relationship  of  master 
and  servant  did  not  exist.    In  the  present  case,  the  father  had  made 


CHAP.    IX.]  SEDUCTION   AND   ENTICEMENT.  311 

no  contract  hiring  out  his  daughter,  and  the  relation  of  master  and 
servant  did  exist,  from  the  legal  control  he  had  over  her  services; 
and  although  she  had  no  intention  of  returning,  that  did  not  ter- 
minate the  relation,  because  her  volition  could  not  affect  his  rights. 
That  is  the  only  case  which  has  ever  denied  the  right  of  the  father 
to  maintain  an  action  for  debauching  his  daughter  whilst  under  age; 
and  I  consider  it  as  a  departure  from  all  former  decisions  on  this 
subject.  It  has  frequently  been  decided  that  where  the  daughter 
was  more  than  twenty-one  years  of  age  there  must  exist  some  kind 
of  service;  but  the  slightest  acts  have  been  held  to  constitute  the 
relation  of  master  and  servant  in  such  a  case.  In  Bennett  v.  Allcott, 
2  Term  Rep.  166,  the  daughter  was  thirty  years  of  age;  and  Buller, 
Justice,  held  that  even  milking  cows  was  sufficient.  But  where  the 
daughter  was  over  twenty-one,  and  in  the  service  of  another,  as  in 
Postlethwaite  v.  Parkes,  3  Burr.  1878,  the  action  is  not  maintainable. 
In  Johnson  v.  M'Adam,  cited  by  Topping  in  Dean  v.  Peel,  Wilson,  J., 
said  that  where  the  daughter  was  under  age  he  believed  the  action 
was  maintainable,  though  she  was  not  part  of  the  father's  family 
when  she  was  seduced;  but  when  she  was  of  age,  and  no  part  of  the 
father's  family,  he  thought  the  action  not  maintainable.  In  Fores  v. 
Wilson,  Peake  N.  P.  Cas.  55,  which  was  an  action  for  assaulting  the 
maid  of  the  plaintiff,  and  debauching  her,  per  quod,  &c..  Lord  Ken- 
yon  held  that  there  must  subsist  some  relation  of  master  and  servant ; 
yet  a  very  slight  relation  was  sufficient,  as  it  had  been  determined 
that  when  daughters  of  the  highest  and  most  opulent  families  have 
been  seduced,  the  parent  may  maintain  an  action  on  the  supposed 
relation  of  master  and  servant,  though  every  one  must  know  that 
such  a  child  cannot  be  treated  as  a  menial  servant. 

Put  the  case  of  a  gentleman's  daughter  at  a  boarding-school  de- 
bauched and  gotten  with  child:  on  what  principle  can  the  father 
maintain  the  action,  but  on  the  supposed  relation  of  master  and  serv- 
ant arising  from  the  power  possessed  by  the  father  to  require  menial 
services?  for  in  such  a  case  there  is  no  actual  existing  service  consti- 
tuting the  relation  of  master  and  servant.  Would  it  not  be  mon- 
strous to  contend  that,  for  such  an  injury,  the  law  afforded  no  re- 
dress? The  case  is  perfectly  analogous  to  the  one  before  us:  here 
the  father  merely  permitted  his  daughter  to  remain  with  her  aunt; 
he  had  not  divested  himself  of  his  power  to  reclaim  her  services,  nor 
of  his  liability  to  maintain  and  provide  for  her.  She  was  his  servant 
de  jure,  though  not  de  facto,  at  the  time  of  the  injury,  and  being  his 
servant  de  jure,  the  defendant  has  done  an  act  which  has  deprived 
the  father  of  his  daughter's  services,  and  which  he  might  have  ex- 
acted but  for  that  injury.  We  are  of  opinion  that  the  action  is  main- 
tainable under  the  circumstances  of  this  case,  and  therefore  deny 
the  motion  for  a  new  trial. 

Motion  denied. 


312  SUTTON    V.    HUFFMAN.  [CHAP.    IX. 

SUTTOX  V.  HUFFMAN". 
Supreme  Court  of  New  Jersey,  June,  1866.     3  Vroom,  58. 

Exception  by  defendant  to  the  charge  of  the  court  to  the  jury. 
The  case  is  stated  in  the  opinion  of  the  court. 

Bedle,  J.  The  exception  in  this  case  being  so  general,  and  the 
charge  depending  so  much  upon  its  application  to  the  facts,  it  be- 
comes necessary,  in  order  to  determine  its  correctness,  to  state  the 
evidence  pretty  fully. 

The  action  was  brought  by  Adam  Huffman  for  the  seduction  of 
his  daughter  and  servant  Margaret  Ann,  by  Emanuel  Sutton.  As 
the  result  of  it  a  child  was  born  on  the  eleventh  day  of  April,  1861. 
The  daughter,  at  the  time  of  the  seduction,  was  about  twenty-two 
years  of  age  and  the  act  occurred  not  at  her  father's  house,  but 
at  her  brother  Gilbert's,  who  lived  about  a  mile  from  the  father's. 
Gilbert  was  an  unmarried  son  of  the  plaintiff,  and  lived  upon  a 
farm  called  the  Sutton  farm,  which  appears  to  have  been  owned  by 
the  defendant's  father.  In  the  spring  of  1859  Gilbert  left  his 
father's  house  to  commence  farming  for  himself,  and  first  occupied 
what  is  called  the  Cranmer  farm.  Margaret  Ann  went  with  him, 
she  then  being  under  the  age  of  twenty-one  years.  He  remained 
upon  said  farm  one  year,  and  moved  upon  the  Sutton  farm. 

The  plaintiff  testified  that  Gilbert  rented  the  Cranmer  farm, 
moved  on  it,  and  was  single,  and  had  no  housekeeper,  and  that  he 
told  him  he  could  have  Margaret  Ann  whenever  they  could  spare 
her;  that  she  did  not  go  there  to  receive  wages;  that  she  was  with 
Gilbert  a  good  part  of  the  time  there,  and  was  at  home  some;  that 
she  came  home  very  often  on  Saturdays  and  staid  over  Sunday,  and 
sometimes  would  be  at  home  nearly  two  weeks;  that  while  Gilbert 
lived  on  the  Sutton  farm,  she  was  about  half  the  time  there  and  the 
other  half  at  her  father's  house;  that  she  had  part  of  her  clothing 
at  Gilbert's,  but  the  chief  part  was  at  the  plaintiff's  house;  that 
she  had  to  have  part  at  each  place ;  that  when  she  was  at  her  father's, 
she  did  whatever  her  mother  told  her;  that  she  milked,  churned,  got 
the  meals,  did  housework,  washing,  and  sewing;  that  the  plaintiff 
did  not  pay  her  any  wages,  except  such  clothes  as  slie  needed,  and 
he  found  her  all  her  clothing,  both  while  she  was  on  the  Cranmer 
farm  and  the  Sutton  farm;  that  her  mother  would  send  her  sliirts 
to  make,  and  dresses  for  her  sister  (the  father's  family  consisted  of 
his  wife  and  ten  children,  eight  boys  and  two  daughters  —  Margaret 
Ann,  and  her  sister  who  was  nine  years  old).  That  the  child  was 
born  at  the  plaintiff's  house,  the  physician's  bill  was  paid  by  him, 
and  he  furnished  her  with  everything  necessary  for  her  comfort 
during  sickness,  and  considered  himself  bound  to  do  it. 


CHAP.    IX. J  SEDUCTION   AND   ENTICEMENT.  313^ 

These  leading  facts  were  also  substantially  testified  to  by  Gilbert 
and  Margaret  Ann.  In  addition  to  them  Margaret  Ann  and  Gilbert 
swear  that  Gilbert  did  not  pay  her  any  wages,  and  there  was  no- 
agreement  that  he  should.  Margaret  Ann  testified  that  she  always 
went  to  Gilbert's  with  the  intention  of  returning  to  her  father's, 
and  that  she  was  subject  to  the  control  and  direction  of  her  fatlier 
while  on  the  Cranmcr  and  Sutton  farms.  The  defendant  sought  to 
s,how,  by  the  declarations  of  Margaret  Ann  and  Gilbert,  that  Gil- 
bert was  to  give  her  one  dollar  per  week  and  half  the  poultry.  Other 
evidence  was  offered  by  defendant  to  show  that  while  on  the  Cranmer 
farm  she  had  certain  nice  dresses  there;  also  that  Margaret  Ann  and 
Gilbert  would  sometimes  go  to  the  store,  and  each  purchased  things 
to  be  charged  to  Gilbert,  the  particulars  of  which  do  not  appear;  also 
that  some  shoemaking  was  done  for  her  and  charged  to  Gilbert. 
This  evidence,  together  with  some  other  of  a  general  character,  was 
offered  undoubtedly  to  show  that  the  relation  of  master  and  servant 
did  not  exist  between  the  plaintiff  and  his  daughter,  but  that  she 
had  left  her  father's  house  to  do  for  herself. 

A  general  exception  was  allowed  to  the  whole  charge  upon  the 
relationship  of  master  and  servant,  which  charge  includes  the  ob- 
servations of  the  justice  upon  the  facts  and  the  law.  I  will  refer  to 
such  parts  of  the  charge  only  as  are  objected  to  upon  legal  grounds. 

The  court  charged  that  "  it  is  necessary  for  the  plaintiff  to  prove 
that  she  stood  to  him  in  the  relation  of  servant,  and  that  the  de- 
fendant seduced  and  debauched  her.  And  first,  Did  the  relation  of 
master  and  servant  exist  between  the  father  and  the  daughter?  This 
form  of  issue  is  adapted  to  the  cause  of  loss  of  service  merely,  and 
was  no  doubt  in  its  origin  used  to  recover  only  the  damages  sustained 
by  such  loss  and  the  expenses  of  the  accompanying  sickness.  But 
in  cases  of  this  kind  the  loss  of  service  has  long  ceased  to  be  con- 
sidered the  true  gravamen  of  the  action.  The  real  damages  sought 
to  be  recovered  are  those  occasioned,  not  by  two  or  three  months' 
illness  of  the  daughter,  but  the  permanent  disgrace  inflicted  upon 
her  and  her  family,  and  those  subjecting  the  father  to  permanent 
sorrow.  Notwithstanding  this  change  in  the  object  of  the  action 
the  form  still  continues,  and  though  the  amount  of  service  may  be 
very  small  still  the  fact  must  be  proved  in  order  to  sustain  it.  In 
its  present  scope  this  action  is  the  only  civil  remedy  for  this  kind 
of  trespass.  Your  doubts,  if  you  entertain  any  upon  the  first  point, 
may  be  solved  by  answering  two  questions: — 

"  First.  Did  Margaret  render  any  habitual  service  at  or  about 
the  time  she  was  debauched? 

"  Second.    "Was  she  emancipated  ? 

"  As  to  the  first  question,  if  you  believe  her  father,  brother,  and 
herself,  you  cannot  doubt  that  she  did  serve  him  at  his  home  oc- 
casionally, in  the  usual  way  of  service  by  daughters  at  home,  and 


314  SUTTON   V.    HUFFMAN.  [CIIAP.    IX. 

by  sewing  for  the  family  while  at  her  brother's.  The  service  need 
not  be  of  any  particular  kind,  quality,  or  amount.  Was  any  service 
lost  by  the  injury?  is  the  question.  It  need  not  be  menial  service, 
which  in  law  means  within  walls,  or  house  service,  nor  need  it  be 
continuous  or  from  day  to  day,  nor  need  the  daughter  live  in  the 
family  if  she  serves  out  of  it.  In  short,  any  accustomed  service  lost 
by  the  injury  will  sustain  the  action,  provided  it  be  service  due,  and 
not  a  mere  voluntary  courtesy,  and  service  will  be  regarded  as  due 
unless  the  child  is  emancipated. 

"  Second.  Was  Margaret  emancipated  ?  The  arrival  at  twenty- 
one  years  does  not  emancipate  a  child;  if  the  parent  continues  to 
exercise  authority  and  the  child  to  submit  to  it,  the  emancipation  does 
not  occur.  And  this  is  the  case  with  most  unmarried  daughters 
whose  parents  are  able  to  support  them." 

After  referring  to  the  evidence  generally  and  reflecting  upon  it 
the  court  then  stated  to  the  jury  that  emancipation  was  a  question 
of  intention,  and  further  said :  "  With  these  suggestions  I  leave  it 
with  you  to  determine  whether  Margaret  or  her  father,  or  either  of 
them,  intended  that  she  should  be  free  of  his  control,  and  without 
title  to  his  support  and  protection  at  the  time  of  the  injury.  I  do  not 
think  that  the  fact  that  she  received  wages,  or  by  agreement  be- 
tween her  and  Gilbert  was  to  receive  wages,  if  that  was  so,  of  much 
if  any  importance  to  the  question.  This  was  a  matter  between  her 
and  Gilbert,  and  does  not  affect  her  position  toward  her  father, 
unless  she  engaged  her  whole  time  to  Gilbert  and  that  for  a  period 
that  would  indicate  her  intention  to  be  free  from  her  father.  The 
proof  will  hardly  sustain  this  view.  You  have  that  testimony  before 
you,  and  must  give  it  such  weight  as  you  think  it  deserves.  It 
consists  altogether  of  hearsay  of  what  Gilbert  and  Margaret  said. 
It  is  only  important  with  the  view  of  impeaching  them,  and  not  of 
proving  the  fact  against  the  plaintiff;  as  against  him  it  is  hearsay." 

It  is  first  objected  that  the  question,  "  Did  the  relation  of  master 
and  servant  exist  between  the  father  and  daughter  ?  "  does  not  specify 
the  time  when  such  relation  should  exist.  This  objection  is  more 
technical  than  real.  Immediately  before  putting  that  question  the 
court  charges  that  "  it  is  necessary  for  the  plaintiff  to  prove  that 
she  stood  to  him  in  the  relation  of  servant,  and  that  the  defendant 
seduced  and  debauched  her."  The  jury  could  not  have  understood 
from  this  language  otherwise  than  that  the  daughter  must  be  the 
servant  at  the  time  of  the  seduction.  The  expression  cannot  fairly 
be  construed  to  mean  anything  else;  and  besides  that,  the  court 
in  submitting  the  question  of  emancipation  to  the  jury  expressly 
applies  it  "at  the  time  of  the  injury."  If  the  defendant  desired  it 
more  definite  than  stated,  he  should  have  requested  it  at  the  trial. 

The  other  objections  amount  in  brief  to  this ;  that  Margaret,  at  the 
time  of  tlin  sr'diiction,   was  over  the  age   of  twenty-one  years,  and 


CHAP.    IX.]  SEDUCTION   AND   ENTICEMENT.  315 

in  the  actual  service  of  her  brother  for  wages,  and  that  therefore 
she  could  not  then  be  tlie  servant  of  her  father  so  as  to  sustain 
this  action.  In  the  first  it  is  not  proved  that  s.he  did  receive  wages 
from  her  brother.  As  was  correctly  remarked  by  the  judge  at  the 
circuit,  the  proof  of  what  Gilbert  and  Margaret  had  said  about 
that  was  "  only  important  with  the  view  of  impeaching  them,  and 
not  of  proving  the  fact  against  the  plaintiff;  as  against  him  it  is 
hearsay;"  but  then  if  there  had  been  competent  evidence  of  the 
fact  that  she  received  wages,  that  in  itself  was  not  inconsistent  with 
the  relation  of  master  and  servant  between  her  and  her  father. 
Brown  v.  Eamsay,  5  Dutch.  121.  It  was  not  necessary  that  she 
should  be  in  the  actual  service  of  the  father  at  the  time  of  the  se- 
duction, if  the  relation  of  master  and  servant  then  existed.  It  is 
true  that  loss  of  service  in  fact,  though  very  slight,  must  be  shown 
where  the  daughter  is  over  twenty-one  years,  the  law  not  presuming 
service,  as  in  a  daughter  under  ago,  yet  the  loss  of  service  in  most 
cases  where  there  is  no  personal  violence  occurs  months  after  the 
seduction.  If  the  relation  of  master  and  servant  existed  at  the 
time,  and  the  service  lost  afterwards  was  due  the  parent  by  virtue 
of  such  relationship  as  existed  at  the  seduction,  it  is  sufficient  to 
sustain  the  action.  If  by  reason  of  the  act  the  master  could  not 
have  the  benefit  of  a  service  due  him,  by  virtue  of  a  relation  then 
existing,  even  if  he  did  not  choose  to  exact  it  before,  he  is  entitled 
to  his  action.  The  receipt  of  wages  by  the  daughter  would  be  a  fact 
as  bearing  upon  the  question  of  emancipation,  but  beyond  that  it 
would  not  be  inconsistent  with  the  child  being  unemancipated,  unless, 
as  remarked  by  the  judge,  "  she  engaged  her  whole  time  to  Gilbert, 
and  that  for  a  period  that  would  indicate  her  intention  to  be  free 
from  her  father."  It  does  not  so  appear  in  the  case,  and  the  court 
wisely  said,  "  the  proof  made  will  hardly  sustain  that  view."  As  this 
case  stands  upon  the  evidence,  the  receipt  of  wages,  if  proved,  would 
not  be  inconsistent  with  Margaret  being  unemancipated  and  the 
servant  of  the  plaintiff. 

When  the  daughter  went  to  her  brother's,  she  was  under  twenty- 
one  years;  while  there  she  attained  the  age  of  twenty-one.  The  at- 
taining that  age  is  not  ipso  facto  an  emancipation  of  the  child.  That 
is  the  well-settled  law  of  this  State.  1  Harr.  122;  2  Zab.  409;  5 
Dutch.  117. 

It  is  true  that  the  father  may  then  refuse  to  further  support  and 
provide  for  the  child,  and  the  child  may  then  refuse  to  serve  or 
submit  to  the  control  of  the  parent,  but  unless  either  the  parent 
or  child  has  in  fact  effected  the  emancipation,  the  reciprocal  rights 
and  duties  of  the  parent  and  child  as  to  service  and  support  are 
presumed  to  exist  as  before  the  age  of  twenty-one.  Whether  emanci- 
pation has  occurred  is  a  question  of  fact,  to  be  determined  by  the 
circumstances  of  the  case,  according  to  the  intention  of  the  parties. 


316  SUTTON    V.    HUFFMAN.  [CHAP,    IX. 

Such  circumstances  in  favor  of  a  continuance  of  the  relation  may 
consist  of  a  tacit  consent  on  the  part  of  the  child  to  serve  as 
before,  and  on  the  part  of  the  parent  to  provide  as  before.  The  con- 
duct of  each  to  the  other  may  exist  as  before  without  any  special 
contract  or  understanding,  and  emancipation  would  not  be  accom- 
plished. The  parent  or  ^  child,  or  either  of  them,  may  stand  upon 
their  rights  to  dissolve  the  relation  at  that  time,  if  they  wish,  and 
if  they  do  in  fact  the  relation  of  master  and  servant  is  ended,  but 
if  they  do  not  in  fact,  and  they  tacitly  continue  —  the  child  to  submit 
to  the  authority  of  the  parent  and  to  serve  him  in  such  way  as 
is  usual  for  children,  and  the  parent  to  exercise  authority  and  provide 
for  the  child  as  before  —  the  child  is  unemancipated  and  third  parties 
are  bound  to  respect  it.    Lipe  v.  Eisenlerd,  33  N.  Y.  229. 

The  question  of  emancipation,  as  one  of  fact,  was  distinctly  left 
by  the  judge  to  the  jury,  and  I  find  nothing  in  the  charge  inconsistent 
with  the  rule  of  law  as  laid  down.  The  facts  as  they  appear  in  the 
case  would  justify  the  jury  in  finding  the  daughter  not  emancipated. 
If  she  was  not  emancipated,  then  the  action  would  be  sustained  by 
proof  of  loss  of  any  service  to  which  the  plaintiff  was  entitled.  Upon 
that  point  the  judge  charged  "  that  any  service  lost  by  the  injury 
is  the  question ; "  and  further,  "  in  short,  any  accustomed  service 
lost  by  the  injury  will  sustain  the  action  provided  it  be  service  due 
and  not  a  mere  voluntary  courtesy,  and  service  will  be  regarded  as 
due  unless  the  child  is  emancipated."  If  the  child  was  not  emanci- 
pated service  performed  will  be  regarded  as  due  the  parent.  The 
parent  can  sustain  the  action  for  the  services  of  an  unemancipated 
child  over  twentj'^-one  years.    Brown  v.  Eamsay,  5  Dutch.  118. 

In  the  absence  of  proof  that  the  parent  and  child,  in  the  perform- 
ance of  service  by  the  child,  had  contracted  with  each  other  as 
strangers,  the  law  holds  that  service  done  by  an  unemancipated  child 
is  done  because  it  is  due  to  the  parent.  The  service,  as  already 
stated,  need  not  be  rendered  on  the  day  of  the  injury.  If  the  injury 
has  occasioned  any  loss  of  service  due  by  virtue  of  the  relations, 
though  the  loss  has  been  sustained  long  after  the  injury,  it  is  suffi- 
cient. The  charge  upon  this  question  was  entirely  correct.  It  was 
objected  that  the  question,  "  Did  Margaret  render  any  habitual  service 
at  or  about  the  time  she  was  debauched  ? "  should  have  been  con- 
fined to  the  debauchment.  This  objection  is  already  sufficiently 
answered,  for  the  case  docs  not  proceed  upon  the  idea  that  actual 
service  is  necessary  at  that  time.  The  fact  of  habitual  service  about 
the  time  she  was  debauched  was  important  as  showing  the  relation 
of  the  child  to  the  parent,  —  how  they  were  accustomed  to  act  to- 
wards each  other.  If  before  the  seduction,  and  after,  as  was  proved 
by  the  plaintiff,  she  did  serve  her  father  when  at  home,  in  the  usual 
way  of  a  daughter,  and  did  also  serve  him  at  her  brother's  by  sewing 

'  sir,  for  niKl. 


OHAP.    IX.]  SEDUCTION   AND   ENTICEMENT.  317 

for  her  father's  family,  it  showed  a  recognition  on  her  part  of  the 
continuance  of  the  relationship  that  existed  before  she  was  of 
age.  These  acts  of  service  covering  the  time  she  was  at  Gilbert's, 
or  about  the  time  of  the  seduction,  were  of  the  utmost  importance 
upon  that  subject. 

The  two  questions  —  one  as  to  the  habitual  service  and  the  other 
as  to  emancipation  —  cover  the  whole  case  upon  the  relation  of  master 
and  servant.  The  judge  expressly  stated,  their  doubts,  if  they  had 
any  upon  that  question,  could  be  solved  by  answering  those  two 
questions,  and  those  questions  were  correctly  put  and  explained 
to  accomplish  that  end.  I  see  no  error  in  the  charge,  and  the  judg- 
ment must  therefore  be  Affirmed. 


SOUTH  V.  DEXmSTON. 

Supreme  Court  of  Pennsylvania,  September,  1834.     2  Watts,  474. 

Writ  of  error.  The  action  was  an  action  on  the  case  by  Sarah 
South,  plaintiff  in  error,  against  Joseph  Denniston,  for  the  seduction 
of  tlie  plaintiff's  daughter.  The  action  was  brought  by  the  mother, 
a  widow,  during  the  minority  of  her  daughter.  The  latter  went  to 
live  with  the  defendant's  father  at  the  age  of  eleven,  and  continued 
there  until  her  seventeenth  or  eighteenth  year,  when  the  seduction 
took  place,  and  she  was  begotten  with  child  by  the  defendant.  The 
daughter  continued  to  live  at  the  house  until  the  month  of  June 
following,  when  she  returned  to  her  mother,  with  whom  she  lived 
until  the  child  was  born,  in  November.  Her  mother  attended  her 
during  her  lying-in  sickness,  before  which  and  after  her  return  she 
assisted  her  mother  about  the  house.  The  court  below  instructed  the 
jury  that  the  plaintiff  was  not  entitled  to  maintain  the  action.  This 
was  the  subject  of  the  assignment  of  error. 

Gibson,  C.  J.  An  action  on  the  case  for  the  seduction  of  a  daugh- 
ter is  founded  exclusively  on  the  relation  of  master  and  servant,  not 
parent  and  child;  and  the  gist  of  it  is  consequential  loss  of  service. 
By  reason  of  a  father's  duty  to  educate  and  maintain  his  infant 
children  he  stands  in  the  place  of  a  master  to  them  while  he  retains 
the  right  of  personal  control,  even  as  to  such  of  them  as  are  not 
under  his  immediate  dominion.  But  if  this  right  be  divested  or  ex- 
pired, the  relation  can  be  renewed  but  by  actual  service,  which,  to 
found  an  action  for  the  interruption  of  it,  must  have  existed  at  the 
doing  of  the  act  of  which  the  interruption  is  a  consequence;  the  dif- 
ference between  it  and  any  other  state  of  servitude  being  that  slighter 
acts  of  service  are  evidence  of  it.  If,  however,  the  right  of  control 
be  not  finally  parted  with,  its  existence  without  actual  service  is  a 
sufficient  foundation  for  a  title  to  the  action ;  and  the  decision  in 


318  SOUTH    V.    DENNISTON.  [CHAP.    IX. 

Dean  v.  Peel,  4  East,  49,  that  actual  employment  in  the  service  of 
another  without  an  intent  to  return  to  the  father's  protection  is  fatal 
to  an  action  in  his  name,  has  been  justly  repudiated,  because  his 
right  to  his  daughter's  service  is  independent  of  her  will.  But  a 
mother,  being  at  best  in  the  category  of  a  father  wlio  has  parted 
with  his  right,  can  maintain  the  action  but  on  proof  of  actual  service 
at  the  time  of  the  seduction.  Not  being  bound  to  the  duty  of  mainte- 
nance, she  is  not  entitled  to  the  correlative  right  of  service;  and 
standing  as  a  stranger  to  her  daughter  in  respect  to  the^e,  the  relation 
of  mistress  and  servant  can  be  constituted  between  them  but  as  it 
may  be  constituted  between  strangers  in  blood,  save  that  less  evidence 
would  perhaps  be  sufficient  to  establish  it. 

These  are  the  fundamental  principles  of  the  action,  deducible 
from  all  the  authorities  but  Sargent's  Case,  5  Cowen,  106,  and  from 
that  case  we  are  constrained  to  dissent.  There  it  appears  to  have 
been  decided  that  a  widow  whose  daughter  has  been  debauched,  while 
out  at  service  under  indentures  of  apprenticeship  subsequently  can- 
celled, might  maintain  the  action  on  the  ground  that  she  had  suc- 
ceeded to  the  parental  rights  of  her  husband ;  or  else  that  the  daugh- 
ter was  in  her  service  at  the  time  of  the  birth.  But  nothing  is  more 
sure  than  that  a  mother  is  not  entitled  to  the  service  of  her  child 
by  the  common  law;  and  the  decision  therefore  obviously  rests  on 
some  statutory  provisions  devolving  the  parental  rights  of  the  father 
upon  his  widow,  which  is  not  in  force  here.  Yet  even  that  would 
seem  to  be  inadequate  to  the  maintenance  of  the  action  by  a  widow 
who  had  parted  with  her  right  without  reservation  or  recall;  and 
even  taking  for  granted  that  it  reverted  to  her  at  the  cancellation 
of  the  indentures,  still  it  did  not  exist  for  the  purpose  of  sustaining 
the  relation  of  mistress  and  servant  at  the  time  of  the  seduction.  The 
action  was  therefore  not  maintainable  on  the  last  ground,  according 
to  the  decision  of  the  same  court  in  Nickleson  v.  Stryker,  10  Johns. 
117.  But  whatever  may  have  been  decided,  it  requires  but  little  aid 
from  authority  to  sustain  a  principle  so  palpable  as  that  a  party 
cannot  entitle  himself  to  an  action  for  what  was  no  wrong  to  him, 
by  employing  a  disabled  servant.  An  action  for  loss  of  service  would 
certainly  not  lie  for  beating  one  who  was  not  in  the  plaintiff's  service 
at  the  time,  because  it  would  be  esteemed  an  act  of  folly  in  him  to 
employ  an  unfit  person ;  and  it  must  necessarily  be  indifferent,  in 
point  of  principle,  whether  the  unfitness  were  caused  by  beating 
or  impregnation.  It  was  so  considered  in  Logan  v.  Murray,  6  Serg. 
&  R.  175,  where  the  daughter  had  come  pregnant  into  the  mother's 
service,  after  the  death  of  her  father,  in  wlioso  service  she  had  been 
dc})aiKbod.  As  to  the  child-bed  expenses,  assuming  tliat  the  mother 
is  liable  to  bear  them  (though  we  certainly  have  no  law  for  it), 
these,  though  proper  to  swell  the  damages,  are  not  a  substantive 
ground  of  tlic  action,  as  was  held  in  Logan  v.  Murray;  and  as  to  the 


CHAP.    IX.]  SEDUCTION   AND   ENTICEMENT.  319 

argument  so  earnestly  pressed  upon  us,  that  slie  is  entitled  to  com- 
pensation for  the  increased  risk  of  becoming  chargeable  for  tlie 
daughter's  maintenance  as  a  pauper,  it  is  enough  to  say  that  it  would 
make  the  mother's  right  depend  on  the  contingent  inability  of  the 
daughter  to  maintain  herself,  which  is  not  the  foundation  of  the  action 
by  a  father,  whose  duty  to  maintain  is  an  immediate  one  and  inde- 
pendent of  all  consideration  of  the  child's  own  means.  Besides,  the 
principle  would  give  the  same  right  of  action  to  the  daughter  for  the 
seduction  of  the  mother,  and  might,  under  circumstances,  entitle 
the  servant  to  damages  for  the  impregnation  of  her  mistress.  That 
would  be  an  inversion  of  the  principles  of  the  action  laid  down  by 
this  court  in  Hornketh  v.  Barr,  8  Serg.  &  R.  39 ;  the  authority  of 
which  is  amply  sufficient  to  sustain  the  decision  of  the  court  below. 
The  daughter,  residing  in  the  family  of  the  defendant's  father  at 
the  time  of  the  seduction,  could  in  no  respect  be  considered  her 
mother's  servant;  and  her  subsequent  acquirement  of  the  character, 
if  she  ever  did  acquire  it,  could  not  vest  in  the  latter  a  title  to  the 
action. 

Judgment  affirmed.^ 


WESTLAKE  v.  WESTLAKE. 

Supreme  Court  of  Ohio,  December,  1878.     34  Ohio  St.  621. 

Action  by  a  married  woman  for  alienation  of  her  husband's  af- 
fection. Verdict  for  the  plaintiff.  Motion  by  the  defendant  for  new 
trial  on  the  ground,  first,  that  the  petition  did  not  set  out  a  cause  of 
action,  secondly,  for  error  of  the  court  in  admitting  declarations  of  the 
husband  as  to  the  cause  of  his  separating  from  his  wife,  and  thirdly, 
because  the  court  refused  to  charge,  as  requested,  that  the  separation 
must  have  been  caused  maliciously. 

The  petition  stated  that  "  the  plaintiff,  Casander  Westlake,  for  her 
cause  of  action,  complains  of  said  defendants  for  that  said  Welling 
B.  Westlake  is  the  son  of  said  Joseph  Westlake,  and  that  she  was 
married  to  said  defendant  Welling  B.  Wc;stlake  on  the  17th  day  of 
September,  a.  d.  1867,  in  Jackson  county,  Ohio,  and  ever  since  has 
been  and  now  is  his  lawful  wife.  That  on  the  21st  day  of  October, 
A.  D.  1873,  at  said  county,  said  Welling  B.  Westlake  was  the  husband 
of  said  plaintiff,  and  the  said  Joseph  Westlake,  well  knowing  the 
same,  on  said  21st  day  of  October,  a.  d.  1873,  and  on  divers  other  days 
and  times  prior  thereto,  wrongfully,  unlawfully,  and  maliciously, 
without  any  just  cause  or  provocation  therefor,  in  order  and  for  the 

'See  Anthony  v.  Norton,  60  Kan.  .'?41.  holding  that,  in  an  nrtion  by  a  widowed 
mother  for  the  seduction  of  her  adult  daughter,  the  court  properly  refused  to  charge 
the  jury,  at  the  defendant's  request,  "  that  the  mere  relation  of  mother  and 
daughter  will  not  permit  a  recovery  by  the  former  for  the  seduction  of  the  latter." 


320  WESTLAKE    V.    WESTLAKE.  [CHAP.    IX. 

express  purpose  of  enticing  and  procuring  the  said  Welling  B.  West- 
lake,  her  said  husband,  to  become  alienated  in  feeling  and  affection 
for  and  disgusted  at  and  with  the  plaintiff  as  his  wife,  wickedly,  wil- 
fully, and  maliciously  spoke  of  and  concerning  her,  said  plaintiff, 
to  her  said  husband  and  divers  good  people,  and  caused  to  be  cir- 
culated and  told  to  her  said  husband,  for  the  purposes  aforesaid, 
divers  false,  scandalous,  and  defamatory  words  of  and  concerning  her, 
the  said  plaintiff,  expressly  in  order  to  procure  and  cause  said  Welling 
B.  Westlake  to  believe  his  said  wife  was  an  unchaste  woman,  and  to 
cause  him  to  become  alienated  from  her  and  despise  and  refuse  to 
live  with  her,  and  to  induce  said  Welling  B.  Westlake  to  drive  and 
banish  her,  said  plaintiff,  from  the  home,  society,  and  companionship 
of  her  said  husband,  and  in  order  to  further  procure  and  induce  her 
said  husband  to  become  alienated  from  her,  and  drive  and  banish  her 
from  the  home  and  companionship  of  her  said  husband,  the  said 
Joseph  Westlake  promised  and  proposed  to  reward  the  said  Welling 
B.  Westlake  with  property  and  money  if  he  would  expel  and  drive 
her,  said  plaintiff,  from  his  home  and  companionship;  and  the  plain- 
tiff further  avers  that  by  reason  of  the  false,  scandalous,  and  defama- 
tory words  spoken  and  circulated  as  aforesaid,  by  said  Joseph  West- 
lake,  of  and  concerning  her,  this  plaintiff,  and  by  reason  of  the 
promise  of  reward  by  him  made  to  said  Welling  B.  Westlake,  and 
causing  the  same  to  be  believed  and  relied  on  by  her  said  husband 
for  the  purposes  aforesaid,  caused  the  said  Welling  B.  Westlake  to 
become  so  alienated  and  disaffected  from  and  towards  this  plaintiff 
as  his  wife  that  the  said  Welling  B.  Westlake,  on  said  21st  day  of 
October,  a.  d.  1873,  against  the  will  and  consent  of  this  plaintiff, 
caused  her,  this  plaintiff,  to  be  removed  from  the  home,  society,  and 
companionship,  of  her  said  husband,  and  then  and  there,  by  reason 
of  the  said  conduct  and  sayings  of  said  Joseph  Westlake,  the  said 
Welling  B.  Westlake,  against  the  plaintiff's  will  and  without  her  con- 
sent, but  in  compliance  with  the  request,  orders,  and  commands  of 
said  defendant  Joseph  Westlake  did  take  said  plaintiff,  with  a  small 
amount  of  personal  property,  into  a  wagon  and  hauled  her  and  said 
property  to  the  distance  of  seven  miles,  and  there  unloaded  and  de- 
posited her  and  said  property  into  a  small  tenement  house  on  the 
land  of  T.  C.  Mitchell,  and  from  thence  hitherto,  by  reason  of  the 
conduct  and  sayings  of  said  Joseph  Westlake,  refuses  to  permit  her, 
said  plaintiff,  to  return  to  him,  said  Welling  B.  Westlake,  and  cohabit 
with  him  as  his  wife,  and  refuses  to  provide  for  and  support  her,  or 
to  contribute  anything  toward  her  support.  .  .  . 

"  She  further  says  .  .  .  the  said  Welling  B.  Westlake  is  unkind  to 
and  unfriendly  with  the  plaintiff,  and  refuses  to  join  with  her  in 
this  action  .  .  .  and  ])laintiff  tlierofore  makes  her  said  husband  party 
dctfendant  with  said  Joseph  Westlake  in  this  action." 

rJiLMOUE,  C.  J.     The  objection  that  the  original  petition  does  not 


CHAP.    IX.]  SEDUCTION    AND   ENTICEMENT.  321 

state  facts  sufficient  to  constitute  a  cause  of  action  raises  the  ques- 
tion :  Can  a  wife  maintain  an  action,  in  her  own  name,  for  the  loss 
of  the  society  and  companionship  of  her  husband  against  one  who 
wrongfully  induces  her  husband  to  abandon  or  send  her  away?  In 
answering  this  question,  in  view  of  the  legislation  of  our  own  State 
on  the  subject  of  the  rights  of  married  women,  it  becomes  neces- 
sary, not  only  to  look  to  the  doctrine  of  the  common  law  on  the 
subject,  but  also  to  examine  the  reasons  upon  which  its  doctrines  rest. 

In  the  early  period  of  EnglisJi  jurisprudence  the  personal  and 
marital  rights  of  wives  were,  in  some  respects,  exclusively  cognizable 
in  the  spiritual  courts,  and,  in  other  respects,  as  far  as  they  were 
recognized  at  all,  the  courts  of  common  law. 

The  common  law  considers  marriage  in  no  other  light  than  a  civil 
contract,  some  of  the  incidents  of  which  will  be  mentioned  hereafter. 
But  the  holiness  of  the  matrimonial  state  is  left  entirely  to  the  eccle- 
siastical law;  the  temporal  courts  not  having  to  consider  unlawful 
marriage  as  sinful  but  merely  as  a  civil  inconvenience.  The  punish- 
ment therefore,  or  annulling  of  incestuous  or  other  unscriptural  mar- 
riages, is  the  province  of  the  spiritual  courts,  which  act  pro  salute 
animae.     1  Black.  432.^ 

The  spiritual  courts  also  had  cognizance  of  matrimonial  causes  or 
injuries  respecting  the  rights  of  marriage.  Sir  William  Blackstone 
enumerates  five  of  such  causes,  the  third  of  which  is :  "  The  suit  for 
restitution  of  conjugal  rights,  which  is  brought  whenever  either  the 
husband  or  wife  is  guilty  of  the  injury  of  subtraction,  or  lives  separate 
from  the  other  without  any  sufficient  reason,  in  which  case  the  ec- 
clesiastical jurisdiction  will  compel  them  to  come  together  again." 
3  Black.  94.  "  In  the  civil  law  the  husband  and  wife  are  considered 
as  two  distinct  persons,  and  may  have  separate  estates,  contracts, 
debts,  and  injuries,  and  therefore  in  our  ecclesiastical  courts  a  woman 
may  sue  and  be  sued  without  her  husband."    1  Black.  444. 

It  is  unnecessary  to  inquire  into  the  extent  to  which  a  wife  could 
obtain  redress  for  injuries  to  her  personal  or  marital  rights  in  the 
spiritual  courts.  The  above  quotations  are  made  for  the  purpose  of 
showing  that  while  it  may  be  doubtful,  in  view  of  a  recent  discussion 
of  the  subject  that  will  be  noticed  below,  whether  the  common  law 
regards  the  right  of  the  wife  to  the  consortium  of  her  husband  as 
of  such  a  nature  that  pecuniary  damages  can  be  given  her  for  being 
wrongfully  deprived  of  it,  yet  in  a  jurisdiction  that  was  exercised 
concurrently  with  that  of  the  common  law  the  rights  of  the  wife 
in  these  respects  were  recognized  and  redressed  when  injured.  The 
fact  that  instead  of  giving  her  damages  for  the  loss  of  the  consortium 
of  her  husband  the  spiritual  courts  restored  to  her  the  thing  itself 
makes  no  difference  in  the  principle  involved.  It  is  a  distinct  recog- 
nition of  the  rights  of  the  wife  in  this  respect,  by  the  ecclesiastical 

1  That  is  not  so  now  in  England. 


322  WESTLAKE   V.   WESTLAKE.  [CHAP.    IX. 

law  of  England,  which  was  founded  on  the  principles  of  the  civil 
law. 

But  at  common  law  the  husband  and  wife  are  one  person,  that  is, 
the  very  existence  of  the  woman,  together  with  all  her  personal 
rights,  are  suspended  during  the  marriage,  or  at  least  are  incorporated 
and  consolidated  into  that  of  the  husband;  and  upon  this  principle, 
of  a  union  in  person  in  husband  and  wife  depend  almost  all  the  legal 
rights,  duties,  and  disabilities  that  either  of  them  acquires  by  the 
marriage.  By  the  marriage  the  husband  acquires  an  absolute  title  to 
all  the  personal  property  of  the  wife,  and  a  right  to  reduce  her  choses 
in  action  to  possession  and  thereby  make  them  his  own;  also  he  be- 
comes entitled  to  her  labor  and  services  or  the  proceeds  of  it,  for 
which  latter  he  may  sue  in  his  own  name.  An  injury  to  the  wife  is  in 
legal  contemplation  an  injury  to  the  husband  only.  For  a  slight 
battery  of  the  wife  the  husband  may  recover  damages,  but  for  this  he 
must  join  his  wife  in  the  action.  If  however  she  is  beaten  so  enor- 
mously that  the  husband  is  thereby  deprived  for  any  time  of  her  com- 
pany and  assistance,  the  law  then  gives  him  an  action  in  his  own 
name  for  this  beating,  per  quod  consortium  amisit,  in  which  he  shall 
recover  satisfaction  in  damages.     1  Black.  442;  3  Id.  139,  140. 

By  comparison  the  difference  between  the  civil  law  as  administered 
in  the  spiritual  courts  and  the  common  law  as  administered  in  the 
temporal  courts,  in  respect  to  the  personal  and  marital  rights  of  the 
husband  and  wife  is  plainly  apparent.  In  the  former  they  are  re- 
garded as  distinct  persons,  and  the  wife  could  have  her  injuries,  of 
which  these  courts  had  jurisdiction,  redressed  in  her  own  name; 
while  in  the  latter  they  are  regarded  as  one  person,  —  the  husband 
whose  name  must  always  be  used  either  jointly  with  the  wife  or  alone 
for  the  redress  of  injuries  to  the  person  or  personal  rights  of  the 
wife. 

If  in  this  State  the  common-law  dominion  of  the  husband  over 
the  property  and  personal  rights  of  the  wife  has  been  taken  away 
from  him  and  conferred  upon  her,  and  remedies  in  accordance  with 
the  spirit  of  the  civil  law  have  been  expressly  given  to  the  wife  for  the 
redress  of  injuries  to  her  person,  property,  and  personal  rights,  all 
of  which  I  hope  to  show  has  been  done,  then  it  must  follow  that  she 
may  maintain  an  action  in  her  own  name  for  the  loss  of  the  con- 
sortium of  her  husband  against  one  who  wrongfully  deprives  her 
of  it,  unless  the  consortium  of  her  husband  is  not  one  of  her  personal 
rights.  It  has  been  already  shown  that  this  was  one  of  her  ecclesias- 
tical-law rights;  and  I  have  said  that  it  is  doubtful  whether  it  is 
one  of  lier  common-law  rights.  But  before  coming  to  the  case  in 
which  the  latter  question  is  discussed  I  will  recur  briefly  to  the 
eeelcfiiastical  law.  The  spiritual  courts  also  had  jurisdiction  of 
defamations.  In  Palmer  v.  Tborpe,  4  Coke,  19,  it  is  said:  "Touch- 
ing defamations  determinable  in  the  Ecclesiastical  Court,  it  was  re- 


CHAP.    IX.]  SEDUCTION   AND   ENTICEMENT.  323 

solved  that  such  defamations  onglit  to  have  three  incidents,"  the  first 
of  which  is,  "  That  it  concerns  matters  merely  spiritual  and  determin- 
able in  the  Ecclesiastical  Court,  as  for  calling  him  'heretic/  'schis- 
matic/ '  adulterer/  '  fornicator/  &c." 

And  it  was  in  consequence  of  such  defamations  being  regarded 
as  matters  merely  spiritual,  that  the  temporal  courts  held  such  words 
as  those  above  quoted  not  actionable  per  se;  for  if  they  were  ac- 
tionable in  both  the  spiritual  and  temporal  courts,  then  a  party  could 
be  twice  punished  for  the  same  words.  Byron  v.  Emes,  12  Mod.  106; 
2  Salk.  G94.  And  here  we  have  the  reason  why  words  imputing  a 
want  of  chastity  to  a  modest  matron  or  a  pure  virgin,  however  ]nib- 
licly  spoken,  were  not  actionable  at  common  law  without  an  allega- 
tion of  special  damage.  And  here  the  test  question  under  this  rule 
of  the  common  law  may  be  asked:  In  an  action  of  slander  brought 
by  a  wife,  the  husband  being  joined  for  conformity,  will  the  loss 
of  tlie  consortium  of  her  husband,  in  consequence  of  speaking  slan- 
derous words  concerning  her,  constitute  special  damage  for  which 
the  action  will  lie  ? 

This  question  was  very  fully  discussed  and  considered  in  Lynch  v. 
Knight  and  wife,  9  H.  L.  577.  This  was  an  action  brought  by  a 
wife,  her  husband  being  joined  as  plaintiff  for  conformity,  against 
L.  for  a  slander  uttered  by  him  to  her  husband,  imputing  to  her 
that  she  had  been  "  all  but  seduced  by  M.  before  her  marriage,  and 
that  her  husband  ought  not  to  suffer  M.  to  visit  at  his  house ; "  and 
the  special  damage  alleged  was  that,  in  consequence  of  the  slander, 
the  husband  had  compelled  her  to  leave  his  house  and  return  to  her 
father,  whereby  she  lost  the  consortium  of  her  husband.  It  was 
held  that  the  cause  of  the  complaint  thus  set  forth  would  not  sustain 
the  action,  inasmuch  as  the  special  damage  relied  upon  did  not  arise 
from  the  natural  and  probable  effect  of  the  words  spoken  by  the  de- 
fendant, but  from  the  precipitation  or  idiosyncrasy  of  the  husband 
in  dismissing  his  wife  from  his  house  when  he  was  only  cautioned  not 
to  let  her  mix  in  society.  But  Lord  Campbell  was  of  the  opinion 
that  a  wife  can  maintain  an  action  against  a  third  person  for  words 
occasioning  to  her  the  loss  of  the  consortium  of  her  husband;  and 
that  had  the  words  contained  a  direct  charge  of  adultery  against 
the  wife,  he  should  have  thought  the  allegation  of  special  damage 
suthcient  to  support  the  action.  In  which  view  Lord  Cranworth  was 
strongly  inclined  to  concur. 

Lord  Campbell  further  said:  "Although  this  is  a  case  of  the  first 
impression,  if  it  can  be  shown  that  there  is  presented  to  us  a 
concurrence  of  loss  and  injury  ^  from  the  act  complained  of,  we  are 
bound  to  say  that  this  action  lies.  Nor  can  T  allow  that  the  loss 
of  consortium  or  conjugal  society  can  give  a  cause  of  action  to  the 
husband  alone.     If  the  special   damage  alleged  to  arise  from  the 

1  That   is,   injuria  —  wrong. 


324  WESTLAKE   V.    WESTLAKE.  [CHAP.    IX. 

speaking  of  slanderous  words,  not  actionable  in  themselves,  result  in 
pecuniary  loss,  it  is  a  loss  only  to  the  husband ;  and  although  it  may  be 
the  loss  of  the  personal  earnings  of  the  wife  living  separate  from 
her  husband,  she  cannot  join  in  the  action.  But  the  loss  of  conjugal 
society  is  not  a  pecuniary  loss ;  though  I  think  it  may  be  a  loss,  which 
the  law  may  recognize,  to  the  wife  as  well  as  to  the  hus])and." 

In  the  same  case  Lord  Wensleydale  stated  that  he  had  considerable 
doubt  upon  the  point,  but  that  he  had  made  up  his  mind  that  the 
action  would  not  lie.  He  said :  "  It  is  contended  that  it  may  be 
supported  by  analogy  to  the  action  which  the  husband  may  unques- 
tionably maintain  for  an  injury  to  wife,  per  quod  consortium  amisit. 
I  agree  with  Baron  Fitzgerald  that  the  benefit  which  the  husband 
has  in  the  consortium  of  the  wife  is  of  a  different  character  from 
that  which  the  wife  has  in  the  consortium  of  the  husband.  The  rela- 
tion of  husband  and  wife  is  in  most  respects  entirely  dissimilar 
from  that  of  the  master  to  the  servant,  yet  in  one  respect  it  has  a 
similar  character.  The  assistance  of  the  wife  in  the  conduct  of  the 
household  of  the  husband,  and  in  the  education  of  the  children,  re- 
sembles the  service  of  a  hired  domestic,  tutor,  or  governess;  is  of 
material  value,  capable  of  being  estimated  in  money,  and  the  loss  of 
it  may  form  the  proper  subject  of  an  action,  the  amount  of  com- 
pensation varying  with  the  position  of  the  parties.  This  property 
is  wanting  in  none.  It  is  to  the  protection  of  such  material  interests 
that  the  law  chiefly  attends." 

This  case  bears  more  directly  upon  the  question  under  considera- 
tion than  any  other  English  case  of  which  I  am  aware;  for,  if  the 
loss  of  the  consortium  of  the  husband  is  sufficient  to  constitute  special 
damage  for  which  an  action  of  slander  would  lie  at  common  law,  it 
seems  to  me  that  there  can  be  no  doubt  that,  under  our  statute,  such 
loss  will  constitute  a  good  cause  of  action  in  favor  of  the  wife  directly 
against  one  who  wrongfully  causes  the  loss;  and  while  the  discussion 
leaves  the  question  in  doubt  at  common  law,  the  grounds  upon  which 
the  judges  differ  are  clearly  indicated. 

If  the  husband  can  maintain  an  action  for  the  loss  of  the  con- 
sortium of  the  wife,  then  it  seems  to  me  that  Lord  Campbell  is 
clearly  right  when  he  says  that  he  cannot  allow  the  action,  for  this 
cause,  to  the  husband  alone,  and  that  the  loss  of  conjugal  society, 
though  not  pecuniary,  is  a  loss  which  the  law  may  recognize  to  the 
wife  as  well  as  to  the  husband. 

To  avoid  the  force  of  this  proposition  the  language  of  Lord  Wens- 
leydale is  open  to  the  inference  that  the  husband  cannot  maintain 
an  action  for  the  loss  of  the  consortium  of  the  wife  alone,  and 
that  it  is  the  loss  of  her  services,  which  are  of  material  value,  and 
not  the  loss  of  her  society,  which  is  of  no  pecuniary  value,  that 
constifutoR  the  gist  of  the  action  which  the  husband  may  maintain 
for  an  injury  to  the  wife;  but  when  the  action  is  well  brought  for 


CHAP.    IX.]  SEDUCTION   AND   ENTICEMENT.  325 

loss  of  services,  it  is  further  to  be  inferred  that  the  jury  may,  as 
they  always  do,  give  damages,  varying  with  the  position  of  the 
parties,  commensurate  with  the  real  injury  including  the  loss  of 
consortium. 

This  unsatisfactory  state  of  the  common  law  in  reference  to  the 
rights  of  the  wife  is,  I  apprehend,  partly  owing  to  the  subject  being 
cognizable  in  two  jurisdictions  and  partly  to  the  common-law  unity 
of  person  in  husband  and  wife  and  the  legal  incidents  that  flow 
from  this  unity,  both  of  which  were  noticed  above. 

Having  shown  the  doubtful  aspect  of  this  question  at  common  law, 
it  will  be  my  object  now  to  show  that  the  reasons  that  gave  rise 
to  tliose  doubts  either  never  existed  in  this  State  or  that  they 
have  been  swept  away  by  legislation. 

In  the  first  place  the  subject  of  marriage  and  marital  rights  haB 
never  been  cognizable  in  two  independent  jurisdictions  in  this  State; 
hence  in  defamations  there  was  no  danger  of  a  person  being  twice 
punished  for  the  same  words;  and  consequently  it  has  long  been  the 
settled  law  of  this  State  that  words  imputing  a  want  of  chastity  to  a 
woman,  married  or  single,  are  per  se  actionable.  Sexton  v.  Todd, 
Wright,  317;  Watson  v.  Trask,  6  Ohio,  532;  Reynolds  v.  Tucker,  6 
Ohio  St.  516.  In  this  respect  therefore  the  law  of  this  State  has 
never  been  in  accord  with  the  common  law. 

Neither  could  a  suit  for  restitution  of  marital  rights  ever  have 
been  maintained  in  any  of  the  courts  of  this  State  as  it  could  in  the 
ecclesiastical  courts  of  England;  and  hence  none  of  the  embarrass- 
ments that  grew  out  of  two  jurisdictions  having  cognizance  of  dif- 
ferent branches  of  the  same  subject-matter  have  ever  arisen  here. 
With  us,  as  shown  below,  whatever  rights  legal  or  equitable  are  recog- 
nized to  the  wife  she  may  defend  when  threatened,  or  redress  when 
injured,  by  actions  in  her  own  name. 

In  the  next  place  let  it  be  admitted  that  at  common  law  Lord 
Wensleydale  is  correct  in  saying  that  the  benefit  which  the  husband  has 
in  the  consortium  of  the  wife  is  of  a  different  character  from  that 
which  the  wife  has  in  the  consortium  of  the  husband,  and  that  the 
difference  consists  in  the  fact  that  the  wife  in  some  respects  re- 
sembles a  hired  domestic,  to  whose  services  the  husband  is  entitled 
in  his  own  right;  let  us  see  if  this  doctrine  of  the  common  law 
has  not  been  overthrown  by  the  legislation  of  this  State. 

By  the  Act  of  1861,  S.  &  S.  389 :  "  All  personal  property,  including 
rights  in  action  belonging  to  any  woman  at  her  marriage,  or  which 
may  have  come  to  her  during  coverture  by  gift,  bequest,  or  in- 
heritance, or  by  purchase  with  her  separate  money  or  means,  or  be 
due  as  the  wages  of  her  separate  labor,  or  have  grown  out  of  a  viola- 
tion of  any  of  her  personal  rights,  shall,  together  with  all  income, 
increase,  and  profit  thereof,  be  and  remain  her  separate  property  and 
under  her  sole  control." 


326  WE8TLAKE    V.    WESTLAKE.  [CHAP.    IX. 

Section  28  of  the  Civil  Code,  as  amended  March  30,  1874,  provides 
as  follows :  "  Where  a  married  woman  is  a  party,  her  husband  must  be 
joined  with  her,  except  when  the  action  concerns  her  separate  prop- 
erty, or  is  upon  a  written  obligation,  contract,  or  agreement  signed 
by  her,  or  is  brought  by  her  to  set  aside  a  deed  or  will,  or  if  she 
be  engaged  as  owner  or  partner  in  any  mercantile  business  and  the 
cause  of  action  grows  out  of  or  concerns  such  business,  or  is  be- 
tween her  and  her  husband,  she  may  sue  or  be  sued  alone.  .  .  .  But 
in  no  case  shall  she  be  required  to  prosecute  or  defend  by  her  next 
friend." 

This  legislation  in  effect  abolishes  the  common-law  unity  of  person 
in  husband  and  wife,  so  far  as  that  unity  is  represented  solely  by 
the  husband,  and  in  its  stead  introduces  a  rule  analogous  to  that 
of  the  civil  law,  by  which  the  wife  is  so  far  regarded  as  a  dis- 
tinct person  that  she  may  have  her  separate  property,  contracts, 
credits,  debts,  and  injuries  growing  out  of  a  violation  of  any  of 
her  personal  riglits,  all  of  which  shall  be  and  remain  under  her  sole 
control;  and  in  matters  concerning  them,  or  any  of  them,  she  may 
sue  or  be  sued  alone.  Even  the  wages  due  for  the  wife's  separate 
labor,  which  are  of  material  value,  capable  of  being  estimated  in 
money,  and  to  which  the  common  law  chiefly  attends  in  giving  the 
husband  an  action  for  an  injury  to  the  wife,  by  reason  of  which 
he  lost  her  services,  has  been  taken  from  the  husband  and  given  to 
the  wife;  not  only  this,  but  she  may  sue  for  such  wages  and  also 
for  such  injury  in  her  own  name,  and  the  husband  cannot,  without 
her  consent,  acquire  any  interest  in  either. 

Consequently,  in  this  respect  at  least,  under  our  legislation  the 
benefit  which  the  wife  has  in  the  consortium  of  the  husband  is  equal 
to  that  which  the  husband  has  in  the  consortium  of  the  wife.  If  at 
common  law  the  husband  could  maintain  an  action  for  the  loss  of 
the  consortium  of  the  wife,  I  can  see  no  reason  why,  under  our 
law,  the  wife  cannot  maintain  an  action  for  the  loss  of  the  con- 
sortium of  the  husband.  And  if  it  be  said  that  it  was  the  loss  of 
the  services  of  the  wife  that  constituted  the  gist  of  the  husband's 
action  in  such  cases,  it  is  a  sufficient  answer  to  it  to  say  that  the 
reasons  upon  which  this  rule  of  the  common  law  rested  cither  never 
existed  or  have  ceased  to  exist  in  this  State. 

In  Clark  v.  Harlan,  1  Cin.  Sup.  Ct.  R.  418,  it  is  held  that  the 
wife  may  maintain  an  action  for  the  loss  of  the  conjugal  society  of 
the  husl)and.  In  Cooley  on  Torts,  227,  in  a  note  referring  to  Lynch 
V.  Knight,  supra,  the  learned  author  closes  by  saying :  "  We  see  no 
reason  why  such  an  action  should  not  bo  supported,  Avhere  by  statute 
the  wife  is  allowed,  for  her  own  benefit,  to  sue  for  personal  wrongs 
sufTored  by  her." 

Ib  the  rigbt  of  the  wife  to  the  consortium  of  the  husband  one  of 
her  personal  rights?     If  it  is,  then  the  statute  makes  the  right  of 


CHAP.    IX.]  SEDUCTION    AND   ENTICEMENT.  327 

action  growing  out  of  an  injury  to  the  right  the  separate  property 
of  the  wife,  for  which  the  Code  gives  her  a  right  to  sue  in  her  own 
name.  Before  marriage  the  man  and  woman  are  endowed  with  the 
same  personal  rights.  If  under  no  disability,  each  is  competent  to 
contract.  When  the  agreement  to  marry  is  entered  into,  but  before 
its  consummation,  each  has  the  same  interest  in  it,  and  either  may 
sue  for  a  breach  of  it  by  the  other.  In  this  State  neither  the  hus- 
band nor  wife  unconditionally  surrenders  their  personal  rights  by 
consummating  the  contract  of  marriage.  On  the  contrary  each  ac- 
quires a  personal  as  well  as  legal  right  to  the  conjugal  society  of  the 
other,  for  the  loss  of  which  either  may  sue  separately. 

A  majority  of  the  court  are  of  the  opinion  that  there  is  a  good 
cause  of  action  stated  in  the  petition. 

Did  the  court  err  in  admitting  the  declaration  of  the  husband, 
made  in  the  absence  of  the  defendant,  to  the  effect  that  the  defendant 
was  doing  all  he  could  to  bring  about  a  separation  between  the  plain- 
tiff and  her  husband?  We  think  it  did.  This  was  clearly  hearsay 
testimony,  and  nothing  else. 

In  an  action  for  enticing  away  the  plaintiff's  wife  the  declarations 
of  the  wife  are  not  admissible  in  evidence.  Winsmore  v.  Greenbank, 
Willes,  577.  The  confessions  of  the  wife,  in  an  action  by  the  hus- 
band against  her  seducer,  are  not  evidence  against  the  defendant. 
Bull.  N.  P.  28.  So  in  an  action  against  a  third  party  for  inducing 
the  plaintiff's  husband  to  send  her  away  the  declarations  of  the  hus- 
band, made  in  the  absence  of  the  defendant,  are  not  admissible  in 
evidence. 

Did  the  court  err  in  refusing  to  charge  that,  to  entitle  the  plain- 
tiff to  recover  the  defendant  must  have  maliciously  caused  the  sepa- 
ration of  the  husband  and  wife?  This  charge  ought  to  have  been 
given.  The  term  malice  as  applied  to  torts  does  not  necessarily 
mean  that  which  must  proceed  from  a  spiteful,  malignant,  or  re- 
vengeful disposition,  but  a  conduct  injurious  to  another  though  pro- 
ceeding from  an  ill-regulated  mind  not  sufficiently  cautious  before 
it  occasions  an  injury  to  another.  11  Serg.  &  R.  39,  40.  If  the  con- 
duct of  the  defendant  was  unjustifiable  and  actually  caused  the 
injury  complained  of  by  the  plaintiff,  which  was  a  question  for  the 
jury,  malice  in  law  would  be  implied  from  such  conduct,  and  the 
court  should  have  so  charged. 

For  error  in  admitting  the  declarations  of  the  husband,  and  in 
refusing  to  charge  as  requested,  the  judgment  must  be  reversed, 
and  the  cause  remanded  to  the  Court  of  Common  Pleas  for  a  new 
trial. 

[White,  J.,  delivered  a  dissenting  opinion  on  the  question  of  the 
sufficiency  of  the  petition,  and  Okey,  J.,  concurred  in  the  same.  They 
considered  that  the  statutes  had  not  conferred  any  new  liabilities 
against  third  persons  in  favor  of  the  wife,  and  that  the  question 


328  WESTLAKE   V.   WESTLAKE.  [OHAP.   IX. 

whether  the  petition  showed  a  cause  of  action  was  to  be  determined 
by  the  common  law  as  modified  by  Ohio  legislation;  the  ecclesiastical 
law  of  England  having  no  proper  bearing  on  the  case.] 

Judgment  accordingly. 


CHAP.   X.]  PIIOCUUING   BREACH   OF   CONTRACT.  329 


Interference  with  Contract. 


CHAPTER   X. 

PROCUEING  BREACH  OF  CONTRACT. 

LUMLEY    V.    GYE. 

Queen's  Bench  of  England,  Trinity  Term,  1853.    2  El.  &  B.  216. 

The  case  arose  upon  a  demurrer  to  the  declaration.  The  allega- 
tions of  the  declaration  are  sufficiently  set  out  in  the  opinion. 

Crompton,  J.  The  declaration  in  this  case  consisted  of  three 
counts.  The  first  two  stated  a  contract  between  the  plaintiff,  the 
proprietor  of  the  Queen's  Theatre,  and  Miss  Wagner,  for  the  per- 
formance by  her  for  a  period  of  three  months  at  the  plaintiff's  theatre; 
and  it  then  stated  that  the  defendant,  knowing  the  premises  and 
with  a  malicious  intention,  whilst  the  agreement  was  in  full  force, 
and  before  the  expiration  of  the  period  for  which  Miss  Wagner  was 
engaged,  wrongfully  and  maliciously  enticed  and  procured  Miss 
Wagner  to  refuse  to  sing  or  perform  at  the  theatre,  and  to  depart 
from  and  abandon  her  contract  with  the  plaintiff,  and  all  service 
thereunder,  whereby  Miss  Wagner  wrongfully,  during  the  full  period 
of  the  engagement,  refused  and  made  default  in  performing  at  the 
theatre;  and  special  damage  arising  from  the  breach  of  Miss  Wag- 
ner's engagement  was  then  stated.  The  third  count  stated  that  Miss 
Wagner  had  been  hired  and  engaged  by  the  plaintiff,  then  being  the 
owner  of  Her  Majesty's  Theatre,  to  perform  at  the  said  theatre  for 
a  certain  specified  period  as  the  dramatic  artiste  of  the  plaintiff  for 
reward  to  her  in  that  behalf,  and  had  become  and  was  such  dramatic 
artiste  for  the  plaintiff  at  his  said  theatre  for  profit  to  the  plaintiff 
in  that  behalf;  and  that  the  defendant,  well  knowing  the  premises 
and  with  a  malicious  intention,  whilst  Miss  Wagner  was  such  artiste 
of  the  plaintiff,  wrongfully  and  maliciously  enticed  and  procured  her, 
so  being  such  artiste  of  the  plaintiff,  to  depart  from  and  out  of  the 
said  employment  of  the  plaintiff,  whereby  she  wrongfully  departed 
from  and  out  of  the  said  service  and  employment  of  the  plaintiff 
and  remained  and  continued  absent  from  such  service  and  employ- 
ment until  the  expiration  of  her  said  hiring  and  engagement  to  the 
plaintiff  by  effluxion  of  time;  and  special  damage  arising  from  the 
breach  of  Miss  Wagner's  engagement  was  then  stated.  To  this  decla- 
ration the  defendant  demurred;  and  the  question  for  our  decision  is, 
whether  all  or  any  of  the  counts  are  good  in  substance. 


330  LUMLEY    V.   GYE.  [CHAP.   X. 

The  effect  of  the  first  two  counts  is,  that  a  person,  under  a  binding 
contract  to  perform  at  a  theatre,  is  induced,  by  the  malicious  act 
of  the  defendant,  to  refuse  to  perform  and  entirely  to  abandon  her 
contract;  whereby  damage  arises  to  the  plaintiff,  the  proprietor  of 
the  theatre.  The  third  count  differs,  in  stating  expressly  that  the 
performer  had  agreed  to  perform  as  the  dramatic  artiste  of  the 
plaintiff,  and  had  become  and  was  the  dramatic  artiste  of  the  plain- 
tiff, for  reward  to  her;  and  that  the  defendant  maliciously  procured 
her  to  depart  out  of  the  employment  of  the  plaintiff  as  such  dramatic 
artiste;  whereby  she  did  depart  out  of  the  employment  and  service  of 
the  plaintiff;  whereby  damage  was  suffered  by  the  plaintiff.  It  was 
said,  in  support  of  the  demurrer,  that  it  did  not  appear  in  the  decla- 
ration that  the  relation  of  master  and  servant  ever  subsisted  between 
the  plaintiff  and  Miss  Wagner;  that  Miss  Wagner  was  not  averred, 
especially  in  the  first  two  counts,  to  have  entered  upon  the  service  of 
the  plaintiff;  and  that  the  engagement  of  a  theatrical  performer, 
even  if  the  performer  has  entered  upon  the  duties,  is  not  of  such  a 
nature  as  to  make  the  performer  a  servant,  within  the  rule  of  law 
which  gives  an  action  to  the  master  for  the  wrongful  enticing  away 
of  his  servant.  And  it  was  laid  down  broadly,  as  a  general  proposi- 
tion of  law,  that  no  action  will  lie  for  procuring  a  person  to  break 
a  contract,  although  such  procuring  is  with  a  malicious  intention 
and  causes  great  and  immediate  injury.  And  the  law  as  to  enticing 
servants  was  said  to  be  contrary  to  the  general  rule  and  principle  of 
law,  and  to  be  anomalous,  and  probably  to  have  had  its  origin  from 
the  state  of  society  when  serfdom  existed,  and  to  be  founded  upon, 
or  upon  the  equity  of,  the  Statute  of  Laborers.  It  was  said  that  it 
would  be  dangerous  to  hold  that  an  action  was  maintainable  for 
persuading  a  third  party  to  break  a  contract,  unless  some  boundary 
or  limits  could  be  pointed  out;  and  that  the  remedy  for  enticing 
away  servants  was  confined  to  cases  where  the  relation  of  master 
and  servant,  in  a  strict  sense,  subsisted  between  the  parties ;  and  that, 
in  all  other  cases  of  contract,  the  only  remedy  was  against  the  party 
breaking  the  contract. 

Whatever  may  have  been  the  origin  or  foundation  of  the  law  as 
to  enticing  of  servants,  and  whether  it  be,  as  contended  by  the  plain- 
tiff, an  instance  and  branch  of  a  wider  rule,  or  whether  it  be,  as 
contended  by  the  defendant,  an  anomaly  and  an  exception  from  the 
general  rule  of  law  on  such  subjects,  it  must  now  be  considered  clear 
law  tliat  a  person  who  wrongfully  and  maliciously,  or  which  is  the 
same  thini^,  with  notice,  interrupts  the  relation  subsisting  between 
master  and  servant,  by  procuring  the  servant  to  depart  from  the 
master's  service  or  by  harboring  and  keeping  him  as  servant  after 
he  has  quitted  it,  and  during  the  time  stipulated  for,  as  the  period 
of  service,  wbercby  the  master  is  injured,  commits  a  wrongful  act 
for  which  he  is  responsible  at  law.     I  think  that  the  rule  applies 


CHAP.    X.J  PROCURING   BREACH   OF    CONTRACT.  331 

wherever  the  wrongful  interruption  operates  to  prevent  the  service 
during  the  time  for  which  the  parties  have  contracted  that  the  service 
shall  continue;  and  I  think  tliat  the  relation  of  master  and  servant 
subsists,  sufficiently  for  the  purpose  of  such  action,  during  the  time 
for  which  there  is  in  existence  a  binding  contract  of  hiring  and 
service  between  the  parties;  and  I  think  that  it  is  a  fanciful  and 
technical  and  unjust  distinction  to  say  that  tiie  not  having  actually 
entered  into  the  service,  or  that  the  service  not  actually  continuing, 
can  make  any  difference.  The  wrong  and  injury  are  surely  the 
same,  whether  the  wrong-doer  entices  away  the  gardener,  who  has 
hired  himself  for  a  year,  the  night  before  he  is  to  go  to  his  work, 
or  after  he  has  planted  the  first  cabbage  on  the  first  morning  of  his 
service;  and  I  should  be  sorry  to  support  a  distinction  so  unjust,  and 
so  repugnant  to  common  sense,  unless  bound  to  do  so  by  some  rule 
or  authority  of  law  plainly  sho\ving  that  such  distinction  exists.  The 
proposition  of  the  defendant,  that  there  must  be  a  service  actually 
subsisting,  seems  to  be  inconsistent  with  the  authorities  that  show 
these  actions  to  be  maintainable  for  receiving  or  harboring  servants 
after  they  have  left  the  actual  service  of  the  master.  In  Blake  v. 
Lanyon,  6  T.  E.  231,  it  was  held  by  the  Court  of  King's  Bench,  in 
accordance  with  the  opinion  of  Gawdy,  J.,  in  Adams  v.  Bafeald,  Leon. 
240,  and  against  the  opinion  of  the  two  other  judges  who  delivered 
their  opinions  in  that  case,  that  an  action  will  lie  for  continuing  to 
employ  the  servant  of  another  after  notice,  without  having  enticed 
him  away,  and  although  the  defendant  had  received  the  servant 
innocently.  It  is  there  said  that  "'  a  person  who  contracts  with  another 
to  do  certain  work  for  him  is  the  servant  of  that  other  till  the  work 
is  finished,  and  no  other  person  can  employ  such  servant  to  the 
prejudice  of  the  first  master;  the  very  act  of  giving  him  employment 
is  affording  him  the  means  of  keeping  him  out  of  his  former  service." 
This  appears  to  me  to  show  that  we  are  to  look  to  the  time  during 
which  the  contract  of  service  exists,  and  not  to  the  question  whether 
an  actual  service  subsists  at  the  time.  In  Blake  v.  Lanyon,  6  T.  E. 
221,  the  party,  so  far  from  being  in  the  actual  service  of  the  plaintiff, 
had  abandoned  that  service,  and  entered  into  the  service  of  the  de- 
fendant in  which  he  actually  was;  but  inasmuch  as  there  was  a 
binding  contract  of  service  with  the  plaintiff,  and  the  defendant  kept 
the  party  after  notice,  he  was  held  liable  to  an  action.  Since  this 
decision,  actions  for  wrongfully  hiring  or  harboring  servants  after 
the  first  actual  service  had  been  put  an  end  to  have  been  frequent; 
see  Pilkington  v.  Scott,  15  M.  &  W.  657;  Hartley  v.  Cummings,  5 
Com.  B.  247.  In  Sykes  v.  Dixon,  9  A.  &  E.  693,  where  the  distinc- 
tion as  to  the  actual  service  having  been  put  an  end  to  was  relied 
upon  for  another  purpose,  it  does  not  seem  to  have  occurred  to  the 
bar  or  the  court  that  the  action  would  fail  on  account  of  there  having 
been  no  actual  service  at  the  time  of  the  second  hiring  or  the  bar- 


332  LUMLEY   V.   GTE.  [CHAP.   X. 

boring;  but  the  question  as  to  there  being  or  not  being  a  binding 
contract  of  service  in  existence  at  the  time  seems  to  have  been  re- 
garded as  the  real  question. 

The  objection  as  to  the  actual  employment  not  having  commenced 
would  not  apply  in  the  present  case  to  the  third  count,  which  states 
that  Miss  Wagner  had  become  the  artiste  of  the  plaintiff,  and  that 
the  defendant  had  induced  her  to  depart  from  the  employment.  But 
it  was  further  said  that  the  engagement,  employment  or  service,  in 
the  present  case,  was  not  of  such  a  nature  as  to  constitute  the  rela- 
jtion  of  master  and  servant,  so  as  to  warrant  the  application  of  the 
usual  rule  of  law  giving  a  remedy  in  case  of  enticing  away  servants. 
The  nature  of  the  injury  and  of  the  damage  being  the  same,  and  the 
supposed  right  of  action  being  in  strict  analogy  to  the  ordinary  case 
of  master  and  servant,  I  see  no  reason  for  confining  the  case  to 
services  or  engagements  under  contracts  for  service  of  any  particular 
description ;  and  I  think  that  the  remedy,  in  the  absence  of  any  legal 
reason  to  the  contrary,  may  well  apply  to  all  cases  where  there  is  an 
unlawful  and  malicious  enticing  away  of  any  person  employed  to 
give  his  personal  labor  or  service  for  a  given  time  under  the  direction 
of  a  master  or  employer,  who  is  injured  by  the  wrongful  act;  more 
especially  when  the  party  is  bound  to  give  such  personal  services 
exclusively  to  the  master  or  employer;  though  I  by  no  means  say 
that  the  service  need  be  exclusive.  Two  nisi  prius  decisions  were 
cited  by  the  counsel  for  the  defendant  in  support  of  this  part  of  the 
argument.  One  of  these  cases,  Ashley  v.  Harrison,  1  Peake's  N.  P.  C. 
194,  s.  c.  1  Esp.  N".  P.  C.  48,  was  an  action  against  the  defendant  for 
having  published  a  libel  against  a  performer,  whereby  she  was  de- 
terred from  appearing  on  the  stage;  and  Lord  Kenyon  held  the  ac- 
tion not  maintainable.  This  decision  appears,  especially  from  the 
report  of  the  case  in  Espinasse,  to  have  proceeded  on  the  ground  that 
the  damage  was  too  remote  to  be  connected  with  the  defendant's 
act.  This  was  pointed  out  as  the  real  reason  of  the  decision  by  Mr. 
Erskine  in  the  case  of  Tarleton  v.  M'Gawley,  1  Peake's  N".  P.  C.  207, 
tried  at  the  same  sittings  as  Ashley  v.  Harrison.  The  other  case, 
Taylor  v.  Neri,  1  Esp.  N.  P.  C.  386,  was  an  action  for  an  assault  on 
a  performer,  whereby  the  plaintiff  lost  the  benefit  of  his  services;  and 
the  Lord  Chief  Justice  Eyre  said  that  he  did  not  think  that  the  court 
had  ever  gone  further  than  the  case  of  a  menial  servant;  for  that,  if 
a  daughter  had  left  the  service  of  her  father,  no  action  per  quod 
servitium  amisit  would  lie.  He  afterwards  observed  that,  if  such 
action  would  lie,  every  man  whose  servant,  whether  domestic  or  not, 
was  kept  away  a  day  from  his  business  could  maintain  an  action;  and 
he  said  that  the  record  stated  that  Breda  was  a  servant  hired  to  sing, 
and  in  his  judgment  he  was  not  a  servant  at  all;  and  he  nonsuited 
the  plaintiff.  Whatever  may  be  the  law  as  to  the  class  of  actions  re- 
ferred to,  for  assaulting  or  debauching  daughters  or  servants  per  quod 


CHAP.    X.]  PROCURING    BREACH    OF    CONTRACT.  333 

servitium  amisit,  and  which  diU'cr  from  actions  of  the  present  nature 
for  the  wrongful  enticing  or  harboring  with  notice,  as  pointed  out  by 
Lord  Kenyon  in  Fores  v.  Wilson,  1  Peake's  N.  P.  C.  55,  it  is  clear  from 
Blake  v.  Lanyon,  6  T.  R.  221,  and  other  subsequent  cases,  Sykes  v. 
Dixon,  9  A.  &  E.  G93,  Pilkington  v.  Scott,  15  M.  &  W.  G57,  and 
Hartley  v.  Cuniraings,  5  Com.  B.  247,  that  the  action  for  maliciously 
interfering  with  persons  in  the  employment  of  another  is  not  con- 
fined to  menial  servants,  as  suggested  in  Taylor  v.  Neri.  In  Blake  v. 
Lanyon,  a  journeyman  who  was  to  work  by  the  piece,  and  who  had 
left  his  work  unfinished,  was  held  to  be  a  servant  for  the  purposes 
of  such  an  action;  and  I  think  that  it  was  most  properly  laid  down 
by  the  court  in  that  case  that  a  person  who  contracts  to  do  certain 
work  for  another  is  the  servant  of  that  other  (of  course  with  refer- 
ence to  such  an  action)  until  the  work  be  finished.  It  appears  to  me 
that  Miss  Wagner  had  contracted  to  do  work  for  the  plaintiff  within 
the  meaning  of  this  rule;  and  I  think  that,  where  a  party  has  con- 
tracted to  give  his  personal  services  for  a  certain  time  to  another, 
the  parties  are  in  the  relation  of  employer  and  employed,  or  master 
and  servant,  within  the  meaning  of  this  rule.  And  I  see  no  reason 
for  narrowing  such  a  rule;  but  I  should  rather,  if  necessary,  apply 
such  a  remedy  to  a  case  "  new  in  its  instance,  but "  "  not  new  in  the 
reason  and  principle  of  it "  (per  Holt,  C.  J.,  in  Keeble  v.  Hickerin- 
gill,  11  East,  573,  575,  note  (a)  to  Carrington  v.  Taylor,  11  East, 
571) ;  that  is,  to  a  case  where  the  wrong  and  damage  are  strictly 
analogous  to  the  wrong  and  damage  in  a  well-recognized  class  of  cases. 
In  deciding  this  case  on  the  narrower  ground,  I  wish  by  no  means  to 
be  considered  as  deciding  that  the  larger  ground  taken  by  Mr. 
Cowling  is  not  tenable,  or  as  saying  that  in  no  case  except  that  of 
master  and  servant  is  an  action  maintainable  for  maliciously  induc- 
ing another  to  break  a  contract  to  the  injury  of  the  person  with 
whom  such  contract  has  been  made.  It  does  not  appear  to  me  to  be  a 
sound  answer  to  say  that  the  act  in  such  cases  is  the  act  of  the  party 
who  breaks  the  contract ;  for  that  reason  would  apply  in  the  acknowl- 
edged case  of  master  and  servant.  Nor  is  it  an  answer  to  say  that 
there  is  a  remedy  against  the  contractor,  and  that  the  party  relies 
on  the  contract;  for,  besides  that  reason  also  applying  to  the  case 
of  master  and  servant,  the  action  on  the  contract  and  the  action 
against  the  malicious  wrongdoer  may  be  for  a  different  matter;  and 
the  damages  occasioned  by  such  malicious  injury  might  be  calculated 
on  a  very  different  principle  from  the  amount  of  the  debt,  which 
might  be  the  only  sum  recoverable  on  the  contract.  Suppose  a  trader, 
with  a  malicious  intent  to  ruin  a  rival  trader,  goes  to  a  banker  or  other 
party  who  owes  money  to  his  rival,  and  begs  him  not  to  pay  the  money 
which  he  owes  him,  and  by  that  means  ruins  or  greatly  prejudices 
the  party :  I  am  by  no  means  prepared  to  say  that  an  action  could 
not  be  maintained,  and  that  damages,  beyond  the  amount  of  the 


334  BEEKMAN   V.    MARSTERS.  [CHAP.   X. 

debt,  if  the  injury  were  great,  or  much  less  than  such  amount  if  the 
injury  were  less  serious,  might  not  be  recovered.  Where  two  or  more 
parties  were  concerned  in  inflicting  such  injury,  an  indictment,  or  a 
writ  of  conspiracy  at  common  law,  might  perhaps  have  been  main- 
tainable; and,  where  a  writ  of  conspiracy  would  lie  for  an  injury 
inflicted  by  two,  an  action  on  the  case  in  the  nature  of  conspiracy 
will  generally  lie;  and  in  such  action  on  the  case  the  plaintiff  is 
entitled  to  recover  against  one  defendant  without  proof  of  any  con- 
spiracy, the  malicious  injury  and  not  the  conspiracy  being  the  gist  of 
the  action.  See  note  (4)  to  Skinner  v.  Gunton,  1  Wms.  Saund.  230. 
In  this  class  of  cases  it  must  be  assumed  that  it  is  the  malicious  act  of 
the  defendant,  and  that  malicious  act  only,  which  causes  the  servant 
or  contractor  not  to  perform  the  work  or  contract  which  he  would 
otherwise  have  done.  The  servant  or  contractor  may  be  utterly  un- 
able to  pay  any  thing  like  the  amount  of  the  damage  sustained  en- 
tirely from  the  wrongful  act  of  the  defendant;  and  it  would  seem 
unjust  and  contrary  to  the  general  principles  of  law,  if  such  wrong- 
doer were  not  responsible  for  the  damage  caused  by  his  wrongful  and 
malicious  act.  Several  of  the  cases  cited  by  Mr.  Cowling  on  this 
part  of  the  case  seem  well  worthy  of  attention. 

Without,  however,  deciding  any  such  more  general  question,  I 
think  that  we  are  justified  in  applying  the  principle  of  the  action 
for  enticing  away  servants  to  a  case  where  the  defendant  malicious^ 
procures  a  party,  who  is  under  a  valid  contract  to  give  her  exclusive 
personal  services  to  the  plaintiff  for  a  specified  period,  to  refuse  to 
give  such  services  during  the  period  for  which  she  had  so  contracted, 
whereby  the  plaintiff  was  injured. 

I  think,  therefore,  that  our  judgment  should  be  for  the  plaintiff. 

[Eele  and  Wightman,  J  J.,  delivered  concurring  opinions;  the 
opinion  of  Wightman,  J.,  contains  a  considerable  discussion  of  the 
provisions  and  effect  of  the  Statute  of  Laborers.  Coleridge,  J.,  dis- 
sented, holding  that  such  actions  as  this  are  founded  on  the  Statute 
of  Laborers,  and  are  confined  to  cases  where  the  relation  of  master 
and  servant  exists  between  the  employer  and  employee  within  the 
meaning  of  that  statute,  and  that  Miss  Wagner  was  not  a  servant  in 
this  sense.] 

Demurrer  overruled. 


BEEKMAN   v.   MARSTERS. 

Supreme  Court  of  Massachusetts,  April,  1907.     195  Mass.  205. 

The  case  is  stated  in  the  opinion. 

LoKiNO,  J.     Tins  suit  came  before  the  single  justice  on  the  report 
of  a  master  to  which  no  exceptions  had  been  taken  by  either  party. 


CH.U'.    X.]  PEOCUllINQ   BREACH   OF    CONTRACT.  335 

and  was  reserved  by  him  for  our  consideration  and  determination 
without  any  ruling  or  decision  having  been  made. 

The  master  found  that  on  November  21,  190(5,  a  contract  was  made 
between  the  plaintiff  and  the  Jamestown  Hotel  Corporation.  That 
corporation  is  erecting  or  has  erected  a  hotel  within  the  grounds  of 
the  Jamestown  Exposition  to  be  held  between  April  26  and  November 
30  of  this  year.  This  hotel  is  known  as  the  Inside  Inn,  and  is  to  be 
the  only  hotel  within  the  exposition  grounds.  The  plaintiff  is  the 
proprietor  of  a  tourist  agency,  having  an  office  at  293  Washington 
Street,  Boston.  By  the  contract  between  the  plaintiff  and  the 
Hotel  Corporation  the  plaintiff  agreed  to  represent  the  Hotel  Cor- 
poration throughout  the  New  England  States,  to  establish  sub-agen- 
cies in  that  territory,  and  to  use  every  possible  endeavor  personally 
and  through  his  agents  to  book  persons  for  the  Inside  Inn;  and  the 
defendant  agreed:  "That  you  [the  plaintliT]  shall  be  our  exclusive 
agent  in  said  territory ; "  to  pay  the  plaintiff  twenty-five  cents  a  day 
for  each  person  sent  by  him  to  the  hotel ;  and  to  furnish  the  plaintiff 
with  all  necessary  "  literature." 

Immediately  upon  being  thus  appointed  the  exclusive  agent  of  the 
Hotel  Corporation  the  plaintiff  prepared  and  issued  a  "  Fall  Edition  " 
of  his  "  Tickets  and  Tours,"  in  which,  inter  alia,  a  description  is 
given  of  the  Jamestown  Exposition  and  of  the  Inside  Inn.  Follow- 
ing this  is  the  statement  that  the  plaintiff  has  been  appointed  New 
England  agent  for  the  exposition  "'  and  exclusive  representative  of 
the  Inside  Inn." 

The  defendant  is  found  by  the  master  to  be  a  ticket  and  tourist 
agent,  with  an  office  at  298  Washington  Street,  Boston.  On  Janu- 
ary 11,  1907,  he  went  to  Norfolk,  Virginia,  and  called  upon  the 
officers  of  the  Hotel  Corporation  there.  At  this  time  he  "  had  seen 
the  contract  between  the  complainant  and  the  hotel  corporation,  but 
had  not  read  it,  and  knew  that  the  company  had  practically  consum- 
mated a  contract  making  Beekman  its  sole  representative  in  New 
England."  The  defendant  at  this  interview  told  these  officers  "  that 
it  was  a  mistake  for  the  corporation  to  give  an  exclusive  agency  in 
New  England  to  any  one  man,  and  that  more  business  would  be 
brought  to  the  company  if  all  agents  were  given  equal  terms,"  and 
to  enforce  his  arguments  stated  that  the  business  done  by  the  plain- 
tiff was  insignificant  and  that  the  statement  was  false  which  was 
made  in  the  summer  edition  of  his  "  Tickets  and  Tours  "  that  certain 
persons  therein  named  had  his  tickets  and  tours  for  sale.  It  ap- 
peared that  the  summer  edition  of  this  catalogue  had  been  shown  to 
the  Hotel  Corporation  by  the  plaintiff  when  he  made  his  contract 
with  it. 

The  master  found  that  "  As  a  result  of  the  solicitations  or  repre- 
sentations made  by  the  respondent,  the  Jamestown  Hotel  Corpora- 
tion on  or  about  January  11,  1907,  entered  into  an  oral  contract  with 


336  BEEKMAN    V.    MARSTERS.  [CHAP.   X. 

him,  whereby  it  was  agreed  that  the  respondent  should  have  the  same 
rights  that  had  been  given  to  the  complainant,  and  that  he  should 
be  paid  by  the  corporation  twenty-five  cents  per  capita  per  day  for 
each  guest  whom  he  should  secure  for  the  Inside  Inn." 

The  defendant  then  wrote  to  all  men  named  in  the  plaintiff's 
catalogue  except  those  having  places  of  business  in  Canada,  "  and 
two  or  three  others  who  appeared  to  have  an  independent  agency 
business,"  telling  them  that  the  plaintiff  had  not  an  exclusive  agency 
for  l^ew  England  and  suggesting  to  them  that  they  could  get  paid 
on  the  same  footing  as  that  upon  which  the  plaintiff  and  the  defend- 
ant were  to  be  paid,  if  they  chose  to  act  for  themselves  and  not  as 
sub-agents  of  the  plaintiff.  He  also  wrote  to  the  New  York,  New 
Haven,  and  Hartford  Eailroad  Company,  calling  attention  to  the 
fact  that  some  of  the  local  ticket  agents  of  that  railroad  company 
were  advertised  by  the  plaintiff  as  having  his  tickets  and  tours 
on  sale,  and  suggesting  that  the  railroad  company  would  prefer  to 
have  all  its  agents  strictly  neutral  in  dealing  with  tourist  con- 
cerns. 

With  respect  to  these  letters  the  master  made  this  finding :  "  The 
purpose  of  the  respondent  in  sending  the  letters  above  mentioned 
appears  from  the  letters  themselves.  I  do  not  find  that  the  respond- 
ent was  actuated  by  malice  toward  the  complainant." 

The  master  further  found  that  "  The  Jamestown  Hotel  Corpora- 
tion has  never  at  any  time  rescinded,  or  attempted  to  rescind,  its  said 
contract  with  the  complainant;"  that  "The  complainant  has  never 
waived  any  of  his  rights  under  the  contract,  and  has  never  consented 
to  any  modification  or  alteration  thereof  except  with  reference  to  the 
bond"  which  is  not  material;  and  further,  tliat  "The  Inside  Inn  is 
the  only  hotel  which  is  located,  or,  under  the  contract  of  the  company 
with  the  exposition,  can  be  located,  within  the  exposition  grounds. 
The  exclusive  right  to  act  as  agent  for  the  Inside  Inn  within  the 
New  England  territory  is  a  valuable  right." 

Lastly  he  has  found :  "  There  is  a  strong  probability  that  a  large 
tourist  business  will  be  done  between  Boston  and  New  England  and 
the  Jamestown  Exposition  between  April  and  the  close  of  the  exposi- 
tion in  November,  and  that  many  passengers  will  arrange  for  tours 
through  various  tourist  agencies.  In  all  probability  many  more  pas- 
sengers will  buy  tours  and  tickets  from  the  complainant  if  he  is  the 
exclusive  agent  in  New  England  for  the  Inside  Inn  than  will  be  the 
case  if  other  tourist  agents  also  book  guests  or  issue  coupons  or  other 
(levif'f's  which  are  accepted  by  tlie  Hotel  Corporation  for  accommoda- 
tions. The  damage  which  he  will  sustain  if  the  respondent  or  other 
persons  are  allowed  to  act  as  agents  or  to  book  guests  or  issue  coupons 
in  this  manner  is  incapal)le  of  accurate  ascertainment.  The  loss  to 
the  complainant  will  not  be  merely  the  Iops  of  the  commi.ssion  of 
twenty-five    cents    jxt    capita   per    {\;\}\    which    would    otherwise    be 


CHAP.  X.]        PROCURING  BREACH  OF  CO^^TRACT.  337 

received  from  the  hotel,  but  it  will  be  the  loss  of  profits  on  tours 
which  he  might  otherwise  be  able  to  arrange." 

The  result  of  the  findings  of  the  master  must  be  taken  to  be  that 
the  defendant  induced  tlie  Hotel  Corporation  to  break  its  contract 
with  the  plaintiff,  but  that  he  did  not  do  tliis  to  spite  the  plaintiff  or 
for  the  purpose  of  injuring  him,  but  for  the  purpose  of  getting  for 
himself  (the  defendant)  business  which  the  plaintiff  alone  was  en- 
titled to  under  the  contract  with  the  Hotel  Corporation,  that  is  to 
say,  to  get  business  which  the  defendant  could  not  get  if  the  Hotel 
Corporation  kept  its  agreement  with  the  plaintiff. 

Three  defences  have  been  set  up  by  the  defendant,  namely:  First, 
that  he  had  a  right  to  do  what  he  did;  second,  that  the  plaintiff 
does  not  come  into  court  with  clean  hands;  and  third,  that  the 
plaintiff  has  an  adequate  remedy  at  law  by  bringing  an  action  for 
damages. 

1.  So  far  as  the  first  defence  is  concerned,  it  is  in  effect  that  where 
A.  is  under  a  contract  to  serve  the  plaintiff  for  a  specified  time,  the 
defendant,  knowing  that  contract  to  be  in  existence,  is  justified  in 
hiring  A.  away  from  the  plaintiff  before  the  expiration  of  that  time, 
by  giving  him  (A.)  higher  wages  if  he  (the  defendant)  thinks  that 
to  be  for  his  (the  defendant's)  pecuniary  benefit.  The  ground  on 
which  the  defendant  bases  this  contention  is  that  he  has  a  right  to 
compete  with  the  plaintiff  and  that  the  right  of  competition  is  a 
justification  for  thus  hiring  away  the  plaintiff's  servant. 

We  say  that  this  is  in  effect  the  defence  set  up  here  because  it  has 
been  settled  in  Massachusetts  that  there  is  no  distinction  between  a 
defendant's  enticing  away  the  plaintiff's  servant  and  a  defendant's 
inducing  a  third  person  to  break  any  other  contract  between  him  and 
the  plaintiff.  That  was  decided  by  this  court  in  Walker  v.  Cronin, 
107  Mass,  555 ;  see  p.  567.  See  also  Moran  v.  Dunphy,  177  Mass. 
485.  In  other  words,  this  court  there  adopted  the  conclusion  reached 
by  the  majority  of  the  judges  of  the  Queen's  Bench  in  Lumley  v.  Gye, 
2  El.  &  Bl.  216.1  rpj^ig  jg  aigo  ^i^g  settled  law  of  the  Supreme  Court 
of  the  United  States.  Angle  v.  Chicago,  St.  Paul,  Minneapolis  & 
Omaha  Eailway,  151  U.  S.  1.  And  it  has  been  aflfirmed  in  p]ngland. 
Bowen  v.  Hall,  6  Q.  B.  D.  333.  Eead  v.  Friendly  Society  of  Opera- 
tive Stonemasons,  [1902]  2  K.  B.  88.  Glamorgan  Coal  Co.  v.  South 
Wales  Miners'  Federation,  [1903]  2  K.  B.  545;  S.  C.  on  appeal,  sub 
nomine  South  Wales  IMiners'  Federation  v.  Glamorgan  Coal  Co. 
[1905]  A.  C.  239.2 

No  case  has  been  cited  which  holds  that  a  right  to  compete  justifies 
a  defendant  in  intentionally  inducing  a  third  person  to  take  away 
from  the  plaintiff  his  contractual  rights. 

Not  only  has  no  case  been  cited  in  which  that  has  been  held,  but 

»Ante,  p.  329. 
*  I'ost.  p.  342. 


338  BEEKMAN    V.    MAESTERS.  [CHAP.   X. 

no  case  has  been  cited  in  which  that  contention  has  been  put  forward. 

It  happens,  however,  that  Mr.  Justice  Wells  in  defining  the  rights 
of  competition  has  denied  the  existence  of  such  a  justification.  In 
discussing  the  first  count  in  Walker  v.  Cronin,  107  Mass.  555,  564, 
he  said :  "  Every  one  has  a  right  to  enjoy  the  fruits  and  advantages 
of  his  own  enterprise,  industry,  skill  and  credit.  He  has  no  right 
to  be  protected  against  competition;  but  he  has  a  right  to  be  free 
from  malicious  and  wanton  interference,  disturbance  or  annoyance. 
If  disturbance  or  loss  come  as  a  result  of  competition,  or  the  exercise 
of  like  rights  by  others,  it  is  damnum  absque  injuria,  unless  some 
superior  right  by  contract  or  otherwise  is  interfered  with."  And  it 
also  happens  that  in  Eead  v.  Friendly  Society  of  Operative  Stone- 
masons, [1903]  2  K.  B.  88,  Darling,  J.,  in  discussing  the  rights  of 
a  labor  union  to  induce  the  plaintiff's  employers  to  break  their 
contract  of  apprenticeship  with  him,  denied  it.  He  there  said :  "  To 
resume,  I  think  the  plaintiff  has  a  cause  of  action  against  the  defend- 
ants, unless  the  court  is  satisfied  that,  when  they  interfered  with 
the  contractual  rights  of  plaintiff,  the  defendants  had  a  sufficient 
justification  for  their  interference  —  to  use  Lord  Macnaghten's  words. 
This  sufficient  justification  they  may  have  had,  and  they  may  prove 
it;  but  the  facts  found  by  the  county  court  judge  and  relied  on  by 
him  as  enough  do  not  amount  to  one ;  for  it  is  not  a  justification  that 
'  they  acted  bona  fide  in  the  best  interests  of  the  society  of  masons,' 
i.  e.,  in  their  own  interests.  Nor  is  it  enough  that  '  they  were  not 
actuated  by  improper  motives.'  I  think  their  sufficient  justification 
for  interference  with  plaintiff's  right  must  be  an  equal  or  superior 
right  in  themselves,  and  that  no  one  can  legally  excuse  himself  to  a 
man,  of  whose  contract  he  has  procured  the  breach,  on  the  ground 
that  he  acted  on  a  wrong  understanding  of  his  own  rights,  or  without 
malice,  or  bona  fide,  or  in  the  best  interests  of  himself,  nor  even  that 
he  acted  as  an  altruist,  seeking  only  the  good  of  another  and  careless 
of  his  own  advantage." 

It  is  hard  to  see  how  this  court  could  have  decided  Garst  v.  Charles, 
187  Mass.  144,  as  it  did  were  it  the  law  that  self  interest  is  a  justifica- 
tion for  intentionally  interfering  with  a  plaintiff's  contractual  rights. 
The  same  is  true  of  Bowen  v.  Hall,  C  Q.  B.  D.  333,  if  not  of  Eead  v. 
Friendly  Society  of  Operative  Stonemasons,  [1902]  2  K.  B.  88. 

The  argument  here  urged  by  the  defendant  comes  from  not  dis- 
tinguishing between  two  cases  which  not  only  are  not  the  same  but 
are  altogether  different  so  far  as  the  question  now  under  consideration 
is  concerncfl. 

If  a  defendant  by  an  offer  of  higher  wages  induces  a  laborer  who 
is  not  under  contract  to  enter  his  (tlie  defendant's)  employ  in  place 
of  the  plaintiff's,  the  plaintiff  is  not  injured  in  his  legal  rights.  But 
it  is  a  quite  (Jifferent  tbing  if  tlie  laborer  was  under  a  contract  with 
the  plaintiff  for  a  period  which  had  not  expired  and  the  defendant. 


CHAP.    X,]  PROCURING   BREACH   OF    CONTRACT.  339 

knowing  that,  intentionally  induced  the  laborer  to  leave  the  plaintiff's 
employ  by  an  offer  of  higher  wages,  to  get  his  (the  laborer's)  services 
for  his  (the  defendant's)  benefit. 

A  plaintiff's  right  to  carry  on  business,  that  is,  to  make  contracts 
without  interference,  is  an  altogether  different  right  from  that  of 
being  protected  from  interference  with  his  rights  under  a  contract 
already  made.  The  existence  of  both  rights  and  the  difference  be- 
tween the  two  is  recognized  by  Wells,  J.,  in  Walker  v.  Cronin,  107 
Mass.  555;  the  first  count  in  that  case  went  on  the  first  right,  and 
the  second  and  third  counts  on  the  second  right.  Again,  the  existence 
of  the  two  is  recognized  and  stated  by  Holmes,  J.,  in  May  v.  Wood, 
173  Mass.  11,  14,  15. 

Where  the  plaintiff  comes  into  court  to  get  protection  from  inter- 
ference with  his  right  of  possible  contracts,  that  is,  of  his  right  to 
pursue  his  business,  acts  of  interference  are  justified  when  done  by 
a  defendant  for  the  purpose  of  furthering  his  (the  defendant's)  in- 
terests as  a  competitor.  It  was  this  right  that  the  plaintiff  came  into 
court  to  assert  in  Carew  v.  Kutherford,  106  Mass.  1,  Walker  v. 
Cronin,  107  Mass.  555  (so  far  as  the  first  count  was  concerned), 
Vegelahn  v.  Guntner,  167  Mass.  92,  Plant  v.  Woods,  176  Mass.  492, 
Martell  v.  White,  185  Mass.  255,  Berry  v.  Donovan,  188  Mass.  353,^ 
and  Pickett  v.  Walsh,^  192  Mass.  572  (so  far  as  the  third  prayer  for 
relief  was  concerned)  ;  while  the  cases  of  Walker  v.  Cronin,  107 
Mass.  555  (so  far  as  the  second  and  third  counts  were  concerned). 
May  V.  Wood,  172  Mass.  11,  Garst  v.  Charles,  187  Mass.  144,  and 
Pickett  V.  Walsh,  192  Mass.  572  (so  far  as  the  second  prayer  for 
relief  was  concerned),  are  cases  of  the  second  class. 

There  are  statements  in  opinions  in  Massachusetts  and  in  England 
that  a  defendant  is  not  liable  for  interference  with  a  plaintiff's  rights 
in  both  of  these  two  classes  of  cases  unless  he  acts  maliciously  within 
the  meaning  of  malice  as  used  in  these  opinions.  In  the  case  at  bar 
there  was  no  necessity  of  proving  spite  or  ill  will  toward  the  plaintiff. 
This  is  not  a  case  where  there  was  an  abuse  of  what,  if  done  in  good 
faith,  would  have  been  a  justification,  but  a  case  where  the  defendant 
with  knowledge  of  the  contract  between  the  plaintiff  and  the  Hotel 
Corporation  intentionally  and  without  justification  induced  the  Hotel 
Corporation  to  break  it.  That  is  proof  of  malice  within  the  mean- 
ing of  that  word  as  used  in  these  opinions.  South  Wales  Miners' 
Federation  v.  Glamorgan  Coal  Co.   [1905]   A.  C.  239.^ 

We  do  not  rest  our  decision  in  this  case  (as  we  have  been  urged 
to  do  by  the  plaintiff)  on  cases  like  Peabody  v.  Norfolk,  98  Mass. 
452,  Lumley  v.  Wagner,  1  DeG.,  M.  &  G.  604,  Stiff  v.  Cassell,  2  Jur. 
(N.  S.)  348,  Donnell  v.  Bennett,  22  Ch.  D.  835,  Manchester  Ship 
Canal  Co.  v.  Manchester  Eacecourse  Co.  [1901]  3  Ch.  37,  Manhattan 

»Post,  p.  355. 

»  Pcsv.  p.   883. 
a  Post,  p.  342. 


340  BEEKMAN    V.    MARSTERS.  [CHAP.    X. 

Manuf.  Co.  v.  New  Jersey  Stock  Yard  Co.  8  C.  E.  Green,  161,  West- 
ern Union  Telegraph  Co.  v.  Eogers,  15  Stew.  (N.  J.)  311,  and  Baker 
V.  Pottmeyer,  75  Ind.  451.  Those  are  cases  where  the  plaintiff,  hav- 
ing a  contract  which  a  court  of  equity  would  specifically  enforce  in 
whole  or  in  part,  brings  a  bill  for  specific  performance  against  the 
other  party  to  the  contract,  and  as  ancillary  to  a  decree  for  specific 
performance  against  the  other  party  to  the  contract  asks  that  the 
third  person  who  is  about  to  contract  or  has  contracted  with  him  be 
also  enjoined.  The  plaintiff  made  out  his  right  to  maintain  this  suit 
against  the  defendant  alone  by  proving  that  he  in  fact  induced  the 
Hotel  Corporation  to  break  its  contract  with  the  plaintiff.  In  case 
of  ordinary  contracts  (that  is  to  say,  contracts  which  will  not  be 
specifically  enforced  in  equity),  a  plaintiff'  does  not  go  far  enough 
to  render  a  defendant  liable  for  unlawful  interference  with  his  con- 
tractual rights,  when  he  proves  that  the  defendant,  in  using  the  or- 
dinary methods  of  promoting  and  increasing  his  own  business,  ob- 
tained business  from  the  other  party  to  the  plaintiff's  contract  which 
that  other  party  could  not  have  given  him  without  breaking  his 
contract  with  the  plaintiff,  and  that  this  was  known  to  the  defendant. 
To  charge  the  defendant  in  such  a  case  the  plaintiff  must  prove  that 
it  was  the  act  of  the  defendant  which  brought  about  the  breach  of 
the  contract  with  the  plaintiff. 

Whether  contracts  which  equity  will  specifically  enforce  stand  on 
a  different  footing  need  not  be  considered. 

2.  The  next  defence  is  that  the  plaintiff  does  not  come  into  court 
with  clean  hands.  What  the  defendant  relies  on  here  is  ( 1 )  the  find- 
ing of  the  master  as  to  the  defendant's  interview  with  the  Hotel 
Corporation  on  January  11  of  this  year:  "  In  talking  with  the  officers 
of  the  corporation,  he  represented  to  the  corporation  and  its  officers 
that  the  complainant's  statements  in  his  catalogue  with  reference 
to  the  persons  who  had  for  sale  his  tickets  and  tours  were  false,  and 
that  the  complainant's  business  was  insignificant,  and  that  he  had 
been  until  recently  a  ticket  scalper  and  that  it  was  a  mistake  for  the 
corporation  to  give  an  exclusive  agency  in  New  England  to  any  one 
man,  and  that  more  business  would  be  brought  to  the  company  if  all 
agents  were  given  equal  terms.  .  .  .  There  was  no  evidence  offered  to 
show  that  the  statements  made  by  Mr.  Marsters  were  false."  The 
defendant  relies  also  (2)  on  this  further  finding  of  the  master:  "At 
the  time  the  contract  above  referred  to  was  made,  the  complainant 
had  put  in  the  hands  of  the  officers  of  the  Jamestown  Hotel  Corpora- 
tion a  copy  of  the  summer  edition  of  his  catalogue  called  'Big  and 
Litt](!  Journeys,'  which  contained  a  list  of  persons  at  whose  offices 
his  tickets  and  tours  were  said  to  be  on  sale,  but  no  other  statement 
was  made  by  him  with  reference  to  said  persons.  His  tickets  and 
tours  were  not  on  sale  at  these  ofTiccs."  Again  (3)  the  defendant 
relies  on  the  fact  that  the  cut  in  the  plaintiff's  catalogue  of  the  exte- 


CHAP.    X,]  PROCURING   BREACH    OF    CONTRACT.  341 

rior  of  the  building,  293  Washington  Street,  represented  that  more 
of  that  building  was  taken  up  with  his  offices  than  was  the  fact ;  and 
lastly  (4),  that  only  one  of  the  personally  conducted  tours  advertised 
in  that  catalogue  to  take  place  did  in  fact  take  place. 

It  is  found  by  the  master  that:  "He  [the  plaintiff]  is  an  agent  of 
the  Boston  and  Maine  Eailroad,  and  as  such  sells  their  tickets,  and 
is  a  special  tourist  agent  for  the  Boston  and  Maine  Railroad,  He  is 
also  an  agent  of  various  other  roads  and  steamship  lines,  and  tourist 
agent  for  still  other  roads  and  steamship  lines.  His  business  con- 
sists largely  in  the  arranging  of  tours  for  individuals  and  parties, 
sometimes  personally  conducted,  throughout  the  United  States,  Can- 
ada, and  Mexico,  and  in  providing  through  transportation  and  hotel 
accommodations  for  such  parties  or  individuals."  It  is  stated  in 
the  master's  report  that  the  plaintiff  testified  that  his  business 
amounted  to  $200,000  a  year.  Again,  it  is  found  by  the  master  as  a 
fact  that  the  plaintiff  receives  business  from  all  parts  of  New  Eng- 
land, and  that  "  The  complainant  for  about  two  years  has  had 
arrangements  with  various  persons  throughout  the  New  England 
States  whereby  they,  for  a  certain  commission,  will  take  orders  for 
his  tickets  and  tours  from  customers  applying  for  them,  and  forward 
such  orders  to  the  complainant.  The  Boston  and  Maine  agents  are 
specially  authorized  by  the  Boston  and  Maine  Eailroad  to  thus  co- 
operate with  the  complainant,  and  a  large  business  is  done  by  the 
complainant  through  these  persons." 

The  ordinary  rule  is  that  it  is  only  with  regard  to  the  plaintiff's 
rights  against  the  defendant  that  the  plaintiff  must  come  into  court 
with  clean  hands.  American  Association  v.  Innis,  109  Ky.  595. 
Bering  v.  Winchelsea,  1  Cox,  318.  Kinner  v.  Lake  Shore  &  Michigan 
Southern  Railway,  69  Ohio  St.  339.  Meyer  v.  Yesser,  32  Ind.  294. 
Lewis  &  Nelson's  appeal,  67  Penn.  St.  153,  166. 

If  we  assume  in  favor  of  the  defendant  (without  making  a  decision 
on  the  point)  that  the  plaintiff  could  not  have  maintained  a  bill  for 
interference  with  his  contractual  rights  if  the  contract  in  question 
had  been  procured  by  his  fraud,  the  defendant  has  not  made  out  a 
defence  on  that  ground. 

Taken  as  a  whole,  the  legal  significance  of  all  the  matters  relied 
on  by  the  defendant  in  this  connection  is  that  the  plaintiff's  contract 
with  the  Hotel  Corporation  was  procured  by  fraud  and  that  all  the 
defendant  has  done  is  to  tell  that  corporation  the  truth. 

The  answer  to  this  is  first,  that  the  master  has  not  found  fraud; 
second,  that  the  Hotel  Corporation  has  not  elected  to  rescind  its  con- 
tract with  the  plaintiff  for  fraud  or  for  any  other  reason;  and  lastly, 
that  the  defendant  did  not  confine  himself  to  telling  the  corporation 
the  truth  about  false  representations  of  the  plaintiff  by  which  he 
procured  the  making  of  the  contract,  but  went  further  and  urged 
as  an  argument  for  inducing  the  corporation  to  break  its  contract 


342  GLAMORGAN    COAL    CO.    V.    MINEES'    FEDERATION.      [CHAP.    X. 

with  the  plaintiff  that  it  was  a  mistake  to  appoint  an  exclusive  agent 
at  all,  that  they  could  make  more  money  if  their  agency  was  not 
exclusive,  no  matter  who  the  agent  was. 

3.  The  finding  of  the  master  as  to  the  damages  which  the  plaintiff 
is  likely  to  suffer  shows  that  an  action  at  law  would  not  give  him 
an  adequate  remedy.  Where  the  plaintiff  proves  that  the  defendant 
unlawfully  interferes  or  threatens  to  interfere  with  his  business  or  his 
rights  under  a  contract,  and  further  makes  out  in  proof  that  dam- 
ages will  not  afford  an  adequate  remedy,  equity  will  issue  an  in- 
junction. The  issuing  of  injunctions  in  Vegelahn  v.  Guntner,  167 
Mass.  92,  and  similar  cases,  the  last  of  which  is  Pickett  v.  Walsh,  192 
Mass.  572,1  are  decisions  directly  in  point.  As  to  which  see  Sherry  v. 
Perkins,  147  Mass.  212. 

The  terms  of  the  injunction  should  be  in  substance  that  the  de- 
fendant be  restrained  from  directly  or  indirectly  acting  as  agent  of 
the  Hotel  Corporation  within  the  New  England  States,  and  from 
preventing  or  seeking  to  prevent,  directly  or  indirectly,  the  plaintiff 
from  acting  as  exclusive  agent  of  the  Hotel  Corporation  for  that 
territory. 

So  ordered. 


GLAMOEGAN"  COAL  COMPANY,  LIMITED  v.  SOUTH  WALES 
MINERS'  FEDERATION. 

House  of  Lords  of  England,  April,  1905.     A.  C.  239, 

The  Glamorgan  Coal  Company,  Limited,  and  seventy-three  other 
plaintiffs,  owners  of  collieries  in  South  Wales,  brought  this  action 
against  the  South  Wales  Miners'  Federation,  its  trustees  and  officers, 
and  several  members  of  its  executive  council,  claiming  damages  for 
wrongfully  and  maliciously  procuring  and  inducing  workmen  in  the 
collieries  to  break  their  contracts  of  service  with  the  plaintiffs,  and 
alternatively  for  wrongfully  and  maliciously  conspiring  to  do  so. 
Evidence  of  the  facts  proved  at  the  trial  before  Bigham,  J.,  without 
a  jury  is  set  forth  in  the  report  of  his  judgment,"  and  the  principal 
facts  are  stated  by  Lord  James  in  this  House.  Briefly  the  case  was  as 
follows.  The  federation  (which  was  registered  as  a  trade  union) 
was  formed  (inter  alia)  to  consider  trade  and  wages,  to  protect  the 
workmen  and  regulate  the  relation  between  tliem  and  employers,  and 
to  call  conferences.  The  wages  were  paid  upon  a  sliding  scale 
agreement,  rising  and  falling  with  the  price  of  coal.  In  November, 
1900,  the  council  of  the  federation,  fearing  that  the  action  of  mer- 
chants and  middlemen  would  reduce  tbe  price  of  coal  and  conse- 
quently the  rate  of  wages,  resolved  to  order  a  "  stop-day"  on  Novem- 

»  1 1003 J    2   K.   B.  54058. 


CHAP.    X.]  PROCURING   BREACH    OF    CONTRACT.  343 

ber  9,  and  informed  the  workmen.  Tliis  order  was  obe3'ed  by  over 
100^000  men,  who  took  a  holiday  and  thereby  broke  their  contracts 
of  service.  At  a  conference  held  on  November  13  between  delegates 
of  the  men  and  the  council  a  resolution  was  passed  authorizing 
the  council  to  declare  a  general  holiday  at  any  time  they  miglit  tliink 
it  necessary  for  the  protection  of  wages  and  of  the  industry  generally. 
In  October  and  November,  1901,  the  council  (as  Bigham,  J.,  found) 
ordered  four  stop-days  for  the  same  reason  as  before,  and  the  men 
took  a  holiday  on  each  of  those  days  in  breach  of  their  contracts. 
Bigham,  J.,  found  that  the  action  of  the  federation  was  dictated  by 
an  honest  desire  to  forward  the  interest  of  the  workmen  and  was  not 
in  any  sense  prompted  by  a  wish  to  injure  the  masters,  between  whom 
and  the  men  there  was  no  quarrel  or  ill-will;  that  having  been  re- 
quested by  the  men  by  the  resolution  of  November  12,  1900,  to  advise 
and  direct  them  as  to  when  to  stop  work,  the  federation  and  its 
officers  did  to  the  best  of  their  ability  advise  and  direct  the  men 
honestly  and  without  malice  of  any  kind  against  the  plaintiffs,  and 
therefore  had  lawful  justification  or  excuse  for  what  they  did.  The 
learned  judge  gave  judgment  for  the  defendants.  This  decision  was 
reversed  by  the  Court  of  Appeal  (Romer  and  Stirling,  L.  JJ. ; 
Vaughan  Williams,  L.  J.,  dissenting),  who  entered  judgment  for  the 
plaintiffs,  the  damages  to  be  assessed.^ 

Lord  Lindley.  My  Lords,  I  agree  so  entirely  with  the  judgments 
of  Eomer  and  Stirling,  L.  JJ.,  that  I  should  say  no  more  were  it 
not  for  the  great  importance  of  some  of  the  arguments  addressed  to 
your  Lordships  on  this  appeal  and  which  deserve  notice. 

It  is  useless  to  try  and  conceal  the  fact  that  an  organized  body 
of  men  working  together  can  produce  results  very  different  from 
those  which  can  be  produced  by  an  individual  without  assistance. 
Moreover,  laws  adapted  to  individuals  not  acting  in  concert  with 
others  require  modification  and  extension  if  they  are  to  be  applied 
with  effect  to  large  bodies  of  persons  acting  in  concert.  The  English 
law  of  conspiracy  is  based  upon  and  is  justified  by  this  undeniable 
truth. 

But  the  possession  of  great  power,  whether  by  one  person  or  by 
many,  is  quite  as  consistent  with  its  lawful  as  with  its  unlawful  em- 
ployment; and  there  is  no  legal  presumption  that  it  will  be  or  has 
been  unlawfully  exercised  in  any  particular  case.  Some  illegal  act 
must  be  proved  to  be  threatened  and  intended,  or  to  have  been  com- 
mitted, before  any  Court  of  justice  in  the  United  Kingdom  can  prop- 
erly make  such  conduct  the  basis  of  any  decision. 

These  remarks  are  as  applicable  to  trade  unions  as  to  other  less 
powerful  organizations.  Their  power  to  intimidate  and  coerce  is  un- 
doubted ;  its  exercise  is  comparatively  easy  and  probable ;  but  it 
would  be  wrong  on  this  account  to  treat  their  conduct  as  illegal  in 

1  [1903]   2  K.  B.  545. 


344  GLAMORGAN    COAL    CO.    V.    MINERS'    FEDERATION.       [CHAP.   X. 

any  particular  case  without  proof  of  further  facts  which  make  it 
so.  It  is  not  incumbent  on  a  trade  union  to  rebut  any  presumption 
of  illegality  based  only  on  their  power  to  do  wrong.  Freedom  neces- 
sarily involves  such  a  power;  but  the  mere  fact  of  its  existence  does 
not  justify  any  legal  presumption  that  it  will  be  abused. 

In  the  case  before  your  Lordships  there  is  proof  that  the  members 
of  the  mining  federation  combined  to  break  and  did  break  their  con- 
tracts with  their  employers  by  stopping  work  without  proper  notice 
and  without  proper  leave.  There  is  also  proof  that  the  officials  of 
the  federation  assisted  the  men  to  do  this  by  ordering  them  to  stop 
work  on  particular  days  named  by  the  officials.  To  break  a  contract 
is  an  unlawful  act,  or,  in  the  language  of  Lord  Watson  in  Allen  v. 
Flood,^  "  a  breach  of  contract  is  in  itself  a  legal  wrong."  The 
form  of  action  for  such  a  wrong  is  quite  immaterial  in  considering 
the  general  question  of  the  legality  or  illegality  of  a  breach  of  con- 
tract. Any  party  to  a  contract  can  break  it  if  he  chooses;  but  in 
point  of  law  he  is  not  entitled  to  break  it  even  on  offering  to  pay 
damages.  If  he  wants  to  entitle  himself  to  do  that  he  must  stipulate 
for  an  option  to  that  effect.  Non-lawyers  are  apt  to  think  that  every- 
thing is  lawful  which  is  not  criminally  punishable;  but  this  is  an 
entire  misconception.  A  breach  of  contract  would  not  be  actionable 
if  nothing  legally  wrong  was  involved  in  the  breach. 

The  federation  by  its  officials  are  clearly  proved  in  this  case  to  have 
been  engaged  in  intentionally  assisting  in  the  concerted  breach  of  a 
number  of  contracts  entered  into  by  workmen  belonging  to  the  federa- 
tion. This  is  clearly  unlawful  according  to  Lumley  v.  Gye,^  and 
Quinn  v.  Leathem,^  and  the  more  recent  case  of  Read  v.  Friendly 
Society  of  Stonemasons.*  Nor  is  this  conclusion  opposed  to  Allen 
V.  Flood  °  or  the  Mogul  Steamship  Company's  Case/  where  there 
was  no  unlawful  act  committed. 

The  appellants'  counsel  did  not  deny  that,  in  his  view  of  the  case, 
the  defendants'  conduct  required  justification,  and  it  was  contended 
(1.)  that  all  which  the  officials  did  was  to  advise  the  men,  and  (2.) 
that  the  officials  owed  a  duty  to  the  men  to  advise  and  assist  them  as 
they  did. 

As  regards  advice,  it  is  not  necessary  to  consider  when,  if  ever, 
mere  advice  to  do  an  unlawful  act  is  actionable  when  the  advice 
is  not  libellous  or  slanderous.  Nor  is  it  necessary  to  consider  those 
cases  in  which  a  person,  whose  rights  will  be  violated  if  a  contract 
is  performed,  is  justified  in  endeavoring  to  procure  a  breach  of  such 
contract.  Nor  is  it  necessary  to  consider  what  a  parent  or  guardian 
may  do  to  protect  his  child  or  ward.     That  there  are  cases  in  which 

>  (1S{|«)  A.  r.  at  p.  9«. 

»2  K.  &  H.  2ir,,  jinfp,   p.   .129. 

»[1»<tl|  A.   (\   4*)r,,  post,   p.   362. 

♦  r  19021  2  K.   It.  7.'{2. 

• [IKOHl  A.  C.  1. 

•(1H92I  A.   C.   2.".,   post,   p.    .346, 


CHAP.    X.]  PROCURING   BREACH    OF    CONTRACT.  346 

it  is  not  actionable  to  exhort  a  person  to  break  a  contract  may  be 
admitted;  and  it  is  very  difficult  to  draw  a  sharp  line  separating  all 
such  cases  from  all  others.  But  the  so-called  advice  here  was  much 
more  than  counsel;  it  w?s  accompanied  by  orders  to  stop,  which  could 
not  be  disobeyed  with  impunity.  A  refusal  to  stop  work  as  ordered 
would  have  been  regarded  as  disloyal  to  the  federation.  This  is  plain 
from  the  speeches  given  in  evidence  on  the  trial;  and  in  my  opinion 
it  is  a  very  important  element  in  the  case  which  cannot  be  ignored. 

As  regards  duty  the  question  immediately  arises  —  duty  to  do 
what?  The  defendants  have  to  justify  a  particular  line  of  conduct, 
which  was  wrongful,  i.  e.,  aiding  and  abetting  the  men  in  doing 
what  both  the  men  and  the  officials  knew  was  legally  wrong.  The  con- 
stitution of  the  union  may  have  rendered  it  the  duty  of  the  officials 
to  advise  the  men  Avhat  could  be  legally  done  to  protect  their  own 
interests ;  but  a  legal  duty  to  do  what  is  illegal  and  known  so  to  be  is  a 
contradiction  in  terms.  A  similar  argument  was  urged  without 
success  in  the  case  of  the  Friendly  Society  of  Stonemasons  ^  al- 
ready referred  to. 

Then  your  Lordships  were  invited  to  say  that  there  was  a  moral 
or  social  duty  on  the  part  of  the  officials  to  do  what  they  did,  and 
that,  as  they  acted  bona  fide  in  the  interest  of  the  men  and  without 
any  ill-will  to  the  employers,  their  conduct  was  justifiable;  and  your 
Lordships  were  asked  to  treat  this  case  as  if  it  were  like  a  case  of 
libel  or  slander  on  a  privileged  occasion.  My  Lords,  this  contention 
was  not  based  on  authority,  and  its  only  merits  are  its  novelty  and 
ingenuity.  The  analogy  is,  in  my  opinion,  misleading,  and  to  give 
efi'ect  to  this  contention  would  be  to  legislate  and  introduce  an  en- 
tirely new  law,  and  not  to  expound  the  law  as  it  is  at  present.  It 
would  be  to  render  many  acts  lawful  which,  as  the  law  stands,  are 
clearly  unlawful. 

My  Lords,  I  have  purposely  abstained  from  using  the  word 
"  malice."  Bearing  in  mind  that  malice  may  or  may  not  be  used 
to  denote  ill-will,  and  that  in  legal  language  presumptive  or  implied 
malice  is  distinguishable  from  express  malice,  it  conduces  to  clear- 
ness in  discussing  such  cases  as  these  to  drop  the  word  "  malice  "  alto- 
gether, and  to  substitute  for  it  the  meaning  which  is  really  intended 
to  be  conveyed  by  it.  Its  use  may  be  necessary  in  drawing  indict- 
ments ;  but  when  all  that  is  meant  by  malice  is  an  intention  to  commit 
an  unlawful  act  without  reference  to  spite  or  ill-feeling,  it  is  better 
to  drop  the  word  malice  and  so  avoid  all  misunderstanding. 

The  appeal  ought  to  be  dismissed  with  costs. 

Order  of  the  Court  of  Appeal  affirmed  and  appeal 

dismissed  with  costs. 

[Concurring  opinions  were  delivered  by  the  Earl  of  Halsbury^ 
L.  C,  Lord  ^lacnaghten  and  Lord  James.] 

>  [1902]  2  K.  B.  732. 


34f»  MOGUL   STEAMSHIP    CO.    V.   MCGREGOR.  [CHAP.   XI. 


CHAPTER  XL 

PROCURING  REFUSAL  TO   CONTRACT. 

MOGUL  STEAMSHIP  COMPANY  v.  McGREGOR. 

House  of  Lords  of  England,  1892.     A.  C.  25. 

Appeal  from  a  decision  of  the  Court  of  Appeal.  23  Q.  B.  D.  598. 
The  action  was  brought  by  the  appellants,  the  Mogul  Steamship  Com- 
pany, Limited,  against  the  respondents,  McGregor,  Gow  &  Co.,  T. 
Skinner  &  Co.,  and  others.  The  statement  of  claim  ^  alleged  as  fol- 
lows : — 

1.  The  plaintiffs  have  suffered  damage  by  reason  of  the  defendants 
(other  than  Sutherland,  Barnes,  Holt,  and  Swire),  as  and  being 
owners  of  numerous  steamers  trading  between  ports  in  the  Yangtse- 
Kiang  River  and  London,  and  the  defendants  Sutherland,  Barnes, 
Holt,  and  Swire,  as  and  being  interested  in  the  steamers  owned  by 
the  defendants,  the  Peninsular  and  Oriental  Steam  Navigation  Com- 
pany and  the  Ocean  Steamship  Company,  conspiring  together  and 
■with  other  persons  at  present  unknown  to  the  plaintiffs  to  prevent 
the  plaintiffs  from  obtaining  cargoes  for  steamers  owned  by  the  plain- 
tiffs from  shippers  to  be  carried  from  ports  in  the  said  river  to  Lon- 
don, for  reward  to  the  plaintiffs  in  that  behalf. 

2.  The  conspiracy  consisted  and  consists  of  a  combination  and 
agreement  by  and  amongst  the  defendants  (other  than  Sutherland, 
Barnes,  Holt,  and  Swire)  as  and  being  owners  of  steamers  trading 
as  aforesaid  and  having  by  reason  of  such  combination  and  agree- 
ment control  of  the  homeward  shipping  trade,  and  the  defendants 
Sutherland,  Barnes,  Holt,  and  Swire,  as  and  being  interested  in  the 
steamers  owned  as  aforesaid,  pursuant  to  which,  shippers  were  and 
arc  bribed,  coerced,  and  induced  to  agree  to  forbear  from  shipping 
cargoes  by  the  steamers  of  the  plaintiffs. 

3.  In  the  alternative  the  conspiracy  consisted  and  consists  of  a 
combination  and  agreement  by  and  amongst  the  defendants,  as  and 
being  owners  of  and  interested  in  steamers  as  aforesaid,  pursuant  to 
which  the  defendants,  witli  the  intent  to  injure  the  plaintiffs  and  pre- 
vent them  from  obtaining  cargoes  for  their  steamers  trading  between 

■•ThlH,  iinfU-r  tho  .Itidlcatiire  AriB,  has  taken  the  plare  of  the  eommou  l:iw  deela 
ration. 


CHAP.    XI.]  PROCURING   REFUSAL    TO    CONTRACT.  347 

the  said  ports,  agreed  to  refuse  and  refused  to  accept  cargoes  from 
shippers  except  upon  the  terms  that  the  said  sliippers  should  not 
ship  any  cargoes  by  the  steamers  of  the  plaintiffs,  and  by  threats  of 
stopping  the  shipment  of  homeward  cargoes  altogether,  which  threats 
they  had  the  power  and  intended  to  carry  into  effect,  did  and  do 
prevent  shippers  from  shipping  cargoes  by  the  plaintiffs'  steamers, 
and  threaten  and  intend  to  continue  so  to  do. 

The  plaintiffs  claimed  damages  and  an  injunction  to  restrain  the  de- 
fendants from  continuing  the  said  wrongful  acts.  An  application 
for  an  interim  injunction  was  refused  by  Lord  Coleridge,  C.  J.,  and 
Fry,  L.  J.,  15  Q.  B.  D.  476.  The  following  are  the  material  facts 
proved  at  the  trial  of  the  action  before  Lord  Coleridge,  C.  J.,  without 
a  jury,  21  Q.  B.  D.  544:— 

The  appellant  company  was  incorporated  in  1883,  and  took  over 
the  steamers  owned  by  Gellatly  &  Co.,  and  among  them  the  SS. 
Pathan,  Afghan,  and  Ghazee,  which  were  in  China  in  the  tea  seasons 
of  1884  and  1885.  Gellatly  &  Co.  were  the  principal  owners  in  and 
managers  of  the  appellant  company,  and  were  also  the  London  out- 
ward loading  brokers  of  the  Ocean  Steamship  Company.  The  respon- 
dents were  owTiers  of,  or  managing  owners  interested  in,  steamers 
engaged  in  the  trade  between  China  and  England  and  elsewhere. 

The  "  tea  season  "  in  China  lasts  about  five  to  six  weeks,  beginning 
from  the  latter  part  of  May.  Tea  exported  during  the  season  from 
Hankow  for  England  is  either  shipped  there  (600  miles  up  the  river 
Yangtse)  direct  for  England  or  sent  to  Shanghai  (at  the  mouth  of 
the  river)  and  there  reshipped.  The  defendants  desired  to  secure 
this  trade  for  themselves  and  to  maintain  freights  at  remunerative 
rates.  With  this  object  they  had  in  some  previous  years  agreed 
among  themselves  to  regulate  the  amount  of  tonnage  to  be  sent  up 
to  Hankow  and  the  freights  to  be  demanded.  In  the  spring  of  1884 
they  held  a  conference,  as  the  result  of  which  they  issued  to  merchants 
and  shippers  in  China  the  following  circular: — 


"  Shanghai,  10th  May,  1884. 

"  To  those  exporters  who  confine  their  shipments  of  tea  and  general 
cargo  from  China  to  Europe  (not  including  the  Mediterranean  and 
Black  Sea  ports)  to  the  P.  &  0.  S.  K.  Co.'s,  M.  M.  Co.'s,  0.  S.  N. 
Co.'s  Glen,  Castle,  Shire,  and  Ben  lines  and  to  the  SS.  Oopack  and 
Ningchow,  we  shall  be  happy  to  allow  a  rebate  of  5  per  cent,  in  the 
freights  charged. 

"  Exporters  claiming  the  returns  will  be  required  to  sign  a  declara- 
tion that  they  have  not  made  or  been  interested  in  any  f^hipments  of 
tea  or  general  cargo  to  Europe  (excepting  the  ports  above  named)  by 
other  than  the  said  lines.  Shipments  by  the  SS.  Albany,  Pathan,  and 
Ghazee  on  their  present  voyages  from  Hankow  will  not  prejudice 


348  MOGUL   STEAMSHIP    CO.    V.    MCGREGOll.  [CIIAP.    XI. 

claims  for  returns.  Each  line  to  be  responsible  for  its  ovra  returns 
only,  which  will  be  payable  half  yearly  commencing  the  SOtli  of  Oc- 
tober next.  Shipments  by  an  outside  steamer  at  any  of  the  ports  in 
China  or  at  Hong  Kong  will  exclude  the  firm  making  such  shipments 
from  participation  in  the  return  during  the  whole  six-monthly  period 
within  which  they  have  been  made,  even  although  its  other  branches 
may  have  given  entire  support  to  the  above  lines. 

"  The  foregoing  agreement  on  our  part  to  be  in  force  from  present 
date  till  the  30th  of" April,  1886." 

The  plaintiffs  (who  were  not  members  of  the  conference)  were  ad- 
mitted to  the  benefits  of  the  arrangement  in  respect  of  their  vessels, 
the  Pathan  and  Ghazee,  for  the  homeward  voyage  of  that  season 
only. 

In  1885  the  defendants  held  another  conference  and  came  to  a 
written  agreement,  dated  the  7th  of  April,  which  regulated  as  be- 
tween the  defendants  the  tea  trade  with  China  and  Japan,  and  pro- 
vided for  a  certain  division  of  cargoes,  for  the  determination  of  the 
rates  of  freight  and  for  the  continuance  of  the  rebate  of  5  per  cent. 
It  also  provided  that  if  "  outsiders  '^  should  start  for  Hankow,  Con- 
ference steamers  must  meet  them  there,  the  selection  of  tonnage  to 
be  employed  for  this  purpose  being  left  to  the  Shanghai  agents  of 
the  lines  in  consultation  together,  the  number  to  be  limited  as  much 
as  consistent  with  effective  opposition.  That  should  there  not  be  a 
Conference  steamer  in  port  or  named  for  despatch  within  a  week 
with  available  cargo  space,  shipments  made  by  an  outsider  during  tbat 
period  should  not  invalidate  the  claim  for  the  rebate  of  5  per  cent. 
on  the  freights.  That  agents  of  Conference  steamers  in  China  and 
Japan  should  be  prohibited  from  being  interested  directly  or  indi- 
rectly in  opposing  steamers,  or  in  the  loading  of  sailing  vessels  of  out- 
eiders.  And  that  the  agreement  might  be  terminated  at  any  time 
on  notice  being  given  by  the  party  wishing  to  retire  to  each  of  the 
others,  but  only  by  principals  at  home  and  not  by  agents  abroad. 
Copies  of  this  agreement  were  sent  by  the  defendants  to  their  agents 
at  Shanghai.  The  plaintiffs  desired  to  join  this  conference,  but  were 
excluded  from  it  and  from  all  its  benefits,  and  in  May,  1885,  sent  the 
Pathan  and  Afghan  to  Hankow  to  endeavor  to  secure  homeward 
cargoes.  The  defendants'  agents  at  Shanghai  thereupon  sent  to  ship- 
pers at  Hankow  the  following  circular: — 

"  Sttangtiat,  11th  May,  1885. 

"  Private.     "Referring  to  our  circular  daicd  ilie  lOtli  of  May,  1884, 

we  l)f'g  to  remind  you  that  shipments  for  Tjondon  by  the  SS.  Pathan, 

Afglian,  and  Aberdeen,  or  by  other  non-Conference  steamers  at  any 

of  the  ports  in  China  or  at  Hong  Kong,  will  exclude  the  fi^rm  making 


CHAP.    XI.]  PROCURING   REFUSAL   TO    COXTRACT.  349 

such  shipments  from  participation  in  the  return  during  the  whole  six- 
monthly  period  in  which  they  have  been  made,  even  although  tlie 
firm  elsewhere  may  have  given  exclusive  support  to  the  Conference 
lines." 

The  defendants  also  despatched  some  Conference  steamers  to  Han- 
kow to  oppose  the  Pathan  and  Afghan  and  secure  the  freights,  if  pos- 
sible, to  the  exclusion  of  non-Conference  vessels,  and  with  this 
object  they  underbid  tbe  plaintiffs  and  caused  a  general  reduction  of 
freights  at  Hankow.  In  the  result  the  Pathan  and  Afghan  obtained 
freights,  but  at  very  low  and  unremunerative  rates.  A  letter  of  the 
1st  of  May  was  put  in  from  the  chairman  of  the  P.  &  0.  Co.  to  their 
agent  at  Shanghai  to  the  effect  that  if  a  firm  of  agents  at 
Hankow  (who  acted  there  both  for  that  company  and  for  the 
plaintiffs)  should  carry  out  their  intention  of  loading  the  plaintiffs' 
vessels  home,  the  P.  &  0.  Co.  would  have  to  close  their  relations  with 
them.  On  the  28th  of  IMay,  Gellatly  &  Co.  were  dismissed  from  the 
agency  of  the  Ocean  Steamship  Company. 

The  action  was  brought  on  the  29th  of  May,  1885.  It  was  agreed 
that  the  damages  should,  if  necessary,  be  ascertained  by  a  reference. 
Lord  Coleridge,  C.  J.,  made  an  order  entering  judgment  for  the  de- 
fendants with  costs.  21  Q.  B.  D.  544.  That  order  was  affirmed  by  the 
Court  of  Appeal  (Bowen  and  Fry,  L.  JJ. ;  Lord  Esher,  M.  E.,  dis- 
senting) 23  Q.  B.  D.  598. 

Lord  Bramwell.  My  Lords,  the  plaintiffs  in  this  case  do  not 
complain  of  any  trespass,  violence,  force,  fraud,  or  breach  of  contract, 
nor  of  any  direct  tort  or  violation  of  any  right  of  the  plaintiffs,  like 
the  case  of  firing  to  frighten  birds  from  a  decoy;  nor  of  any  act  the 
ultimate  object  of  which  was  to  injure  the  plaintiffs  having  its  origin 
in  malice  or  ill-will  to  them.  These  plaintiffs  admit  that  materially 
and  morally  they  have  been  at  liberty  to  do  their  best  for  themselves 
without  any  impediment  by  the  defendants.  But  they  say  that  the 
defendants  have  entered  into  an  agreement  in  restraint  of  trade; 
an  agreement,  therefore,  unlawful ;  an  agreement,  therefore,  indict- 
able, punishable;  that  the  defendants  have  acted  in  conformity  with 
that  unlawful  agreement,  and  thereby  caused  damage  to  the  plaintiffs 
in  respect  of  which  they  are  entitled  to  bring,  and  bring,  this  action. 


The  plaintiffs  also  say  that  these  things,  or  some  of  them,  if  done 
by  an  individual  would  be  actionable.  This  need  not  be  determined 
directly,  because  all  the  things  complained  of  have  their  origin  in  what 
the  plaintiffs  say  is  unlawfulness,  a  conspiracy  to  injure;  so  that  if 
actionable  when  done  by  one,  much  more  are  they  when  done  by 
several,  and  if  not  actionable  when  done  by  several,  certainly  they 
are  not  when  done  by  one.     It  has  been  objected  by  capable  persons 


350  MOGUL    STEAMSHIP    CO.    V.   MCGREGOR.  [CHAP.   XI. 

that  it  is  strange  that  that  should  be  unlawful  if  done  by  several, 
which  is  not  if  done  by  one,  and  that  the  thing  is  wrong  if  done  by 
one,  if  wrong  when  done  by  several;  if  not  wrong  when  done  by  one, 
it  cannot  be  when  done  by  several.  I  think  there  is  an  obvious  answer, 
indeed,  two;  one  is,  that  a  man  may  encounter  the  acts  of  a  single 
person,  yet  not  be  matched  against  several.^  The  other  is,  that  the 
act  when  done  by  an  individual  is  wrong  though  not  punishable, 
because  the  law  avoids  the  multiplicity  of  crimes  —  de  minimis  non 
curat  lex;  while  if  done  by  several  it  is  sufficiently  important  to  be 
treated  as  a  crime.  Let  it  be  then  that  it  is  no  answer  to  the  plaintiffs' 
complaint  that  if  what  they  complain  of  had  been  done  by  an  indi- 
vidual there  would  be  no  cause  of  action.  There  is  the  further  ques- 
tion whether  there  is  a  cause  of  action,  the  acts  being  done  by  several. 

The  first  position  of  the  plaintiffs  is  that  the  agreement  among 
the  defendants  is  illegal  as  being  in  restraint  of  trade,  and  there- 
fore against  public  policy,  and  so  illegal.  "  Public  policy,"  said 
Borough,  J.  (I  believe  quoting  Hobart,  C.  J.),  "is  an  unruly  horse, 
and  dangerous  to  ride."  ^  I  quote  also  another  distinguished  judge, 
more  modern.  Cave,  J. :  "  Certain  kinds  of  contracts  have  been  held 
void  at  common  law  on  the  ground  of  public  policy;  a  branch  of  the 
law,  however,  which  certainly  should  not  be  extended,  as  judges  are 
more  to  be  trusted  as  interpreters  of  the  law  than  as  expounders  of 
what  is  called  public  policy."  ^  I  think  the  present  case  is  an  illustra- 
tion of  the  wisdom  of  these  remarks.  I  venture  to  make  another.  No 
evidence  is  given  in  these  public  policy  cases.  The  tribunal  is  to  say, 
as  matter  of  law,  that  the  thing  is  against  public  policy,  and  void. 
How  can  the  judge  do  that  without  any  evidence  as  to  its  effect  and 
consequences?  If  the  shipping  in  this  case  was  sufficient  for  the 
trade,  a  further  supply  would  have  been  a  waste.  There  are  some 
people  who  think  that  the  public  is  not  concerned  with  this,  —  people 
who  would  make  a  second  railway  by  the  side  of  one  existing,  saying, 
"  only  the  two  companies  will  suffer,"  as  though  the  wealth  of  the 
community  was  not  made  up  of  the  wealth  of  the  individuals  who 
compose  it.  I  am  by  no  means  sure  tliat  the  conference  did  not 
prevent  waste  and  was  not  good  for  the  public.  Lord  Coleridge 
thought  it  was  —  see  his  judgment. 

As  to  the  suggestion  that  the  Chinese  profited  by  the  lowering  of 
freights,  I  cannot  say  it  was  not  so.  There  may  have  been  a  monopoly 
or  other  cause  to  give  them  a  benefit;  but,  as  a  rule,  it  is  clear  that 
the  expense  of  transit,  and  all  other  expenses,  borne  by  an  exported 
article  that  has  a  market  price,  are  l)ornc  by  the  importer,  therefore, 
ultimately,  by  the  consumer.  So  that  low  freights  benefit  him.  To 
go  on  with  the  case,  take  it  that  the  defendants  had  bound  tliem- 
sclvcs  to  each  other;  T  think  tlioy  had,  though  they  might  withdraw. 

*  Sop   HIkpIow  on  TortB,   pp.   2'H)-'jn. 

»  HIchardBon  v.  MoIUhIi,  2  Ulng.  at  p.   2r>2. 

•1891.  1  y.  B.  r.or.. 


CHAP.   XI.]  PROCURING   REFUSAL   TO    CONTRACT.  351 

Let  it  be  that  each  member  had  tied  his  hands;  let  it  be  that  that 
was  in  restraint  of  trade;  I  think  upon  the  authority  of  Hilton  v. 
Eckersley,  and  other  cases,  we  should  hold  that  the  agreement  was 
illegal,  that  is,  not  enforceable  by  law.  I  will  assume,  then,  that  it 
was,  though  I  am  not  quite  sure.  But  that  is  not  enough  for  the 
plaintiffs.  To  maintain  their  action  on  this  ground  they  must  make 
out  that  it  was  an  offence,  a  crime,  a  misdemeanor.  I  am  clearly  of 
opinion  it  was  not.  Save  the  opinion  of  Crompton,  J.  (entitled  to 
the  greatest  respect,  but  not  assented  to  by  Lord  Campbell  or  the 
Exchequer  Chamber),  there  is  no  authority  for  it  in  the  English 
law. 

It  is  quite  certain  that  an  agreement  may  be  void,  yet  the  parties 
to  it  not  punishable.  Take  the  case  I  put  during  the  argument:  a 
man  and  woman  agree  to  live  together  as  man  and  wife,  without 
marrying.  The  agreement  is  illegal,  and  could  not  be  enforced,  but, 
clearly,  the  parties  to  it  would  not  be  indictable.  It  ought  to  be 
enough  to  say  that  the  fact  that  there  is  no  case  where  there  has 
been  a  conviction  for  such  an  offence  as  is  alleged  against  the  de- 
fendants is  conclusive. 

It  is  to  be  remembered  that  it  is  for  the  plaintiffs  to  make  out  the 
case  that  the  defendants  have  committed  an  indictable  offence,  not  for 
the  defendants  to  disprove  it.  There  needs  no  argument  to  prove 
the  negative.  There  are  some  observations  to  be  made.  It  is  ad- 
mitted that  there  may  be  fair  competition  in  trade,  that  two  may 
offer  to  join  and  compete  against  a  third.  If  so,  what  is  the  defini- 
tion of  "  fair  competition  "  ?  What  is  unfair  that  is  neither  forcible 
nor  fraudulent?  It  does  seem  strange  that,  to  enforce  freedom  of 
trade,  of  action,  the  law  should  punish  those  who  make  a  perfectly 
honest  agreement  with  a  belief  that  it  is  fairly  required  for  their  pro- 
tection. 

There  is  one  thing  that  is  to  me  decisive.  I  have  always  said  that 
a  combination  of  workmen,  an  agreement  among  them  to  cease  work 
except  for  higher  wages,  and  a  strike  in  consequence,  was  lawful  at 
common  law;  perhaps  not  enforceable  inter  se,  but  not  indictable. 
The  Legislature  has  now  so  declared.  The  enactment  is  express,  that 
agreements  among  workmen  shall  be  binding,  whether  they  would 
or  would  not,  but  for  the  Acts,  have  been  deemed  unlawful  as  in 
restraint  of  trade.  Is  it  supposable  that  it  would  have  done  so  in  the 
way  it  has,  had  the  workmen's  combination  been  a  punishable  mis- 
demeanor? Impossible.  This  seems  to  me  conclusive  that  though 
agreements  which  fetter  the  freedom  of  action  in  the  parties  to  it  may 
not  be  enforceable,  they  are  not  indictable.  See  also  tlie  judgment  of 
Fry,  L.  J.,  on  this  point.  Where  is  such  a  contention  to  stop  ?  Sup- 
pose the  case  put  in  the  argument :  In  a  small  town  there  are  two 
shops,  sufficient  for  the  wants  of  the  neighborhood,  making  only  a 
reasonable  profit.    They  are  threatened  with  a  third.     The  two  shop- 


352  MOGUL   STEAMSHIP    CO.    V.    MCGREGOR.  [CHAP.    XI. 

keepers  agree  to  warn  the  intending  shopkeeper  that  if  he  comes 
they  will  lower  prices,  and  can  afford  it  longer  than  he.  Have  they 
committed  an  indictable  offence?  Eemember,  the  conspiracy  is  the 
offence,  and  they  have  conspired.^  If  he,  being  warned,  does  not  set 
up  his  shop,  has  he  a  cause  of  action  ?  He  might  prove  damages.  He 
might  show  that  from  his  skill  he  would  have  beaten  one  or  both  of  the 
others.  See  in  this  case  the  judgment  of  Lord  Esher,  that  the  plain- 
tiffs might  recover  for  "  damages  at  large  for  future  years."  Would 
a  shipowner  who  had  intended  to  send  his  ship  to  Shanghai,  but 
desisted,  owing  to  the  defendants'  agreement,  and  on  being  told  by 
them  they  would  deal  with  him  as  they  had  with  the  plaintiffs,  be 
entitled  to  maintain  an  action  against  the  defendants?  Why  not? 
If  yes,  why  not  every  shipowner  who  could  say  he  had  a  ship  fit  for 
the  trade,  but  was  deterred  from  vising  it? 

The  Master  of  the  Eolls  ^  cites  Sir  William  Erie,  that  "  a  combina- 
tion to  violate  a  private  right  in  which  the  public  has  a  sufficient  in- 
terest is  a  crime,  such  violation  being  an  actionable  wrong."  True, 
Sir  William  Erie  means  that  where  the  violation  of  a  private  right 
is  an  actionable  wrong,  a  combination  to  violate  it,  if  the  public  has 
a  sufficient  interest,  is  a  crime.  But  in  this  case  I  hold  that  there 
is  no  private  right  violated.  His  lordship  further  says :  "  If  one  goes 
beyond  the  exercise  of  the  course  of  trade,  and  does  an  act  beyond 
what  is  the  course  of  trade,  in  order  —  that  is  to  say,  with  intent  — 
to  molest  the  other's  free  course  of  trade,  he  is  not  exercising  his 
own  freedom  of  a  course  of  trade,  he  is  not  acting  in  but  beyond  the 
course  of  trade,  and  then  it  follows  that  his  act  is  an  unlawful  ob- 
struction of  the  other's  right  to  a  free  course  of  trade,  and  if  such 
obstruction  causes  damage  to  the  other  he  is  entitled  to  maintain  an 
action  for  the  wrong."  ^  I  may  be  permitted  to  say  that  this  is  not 
very  plain.  I  think  it  means  that  it  is  not  in  the  course  of  trade 
for  one  trader  to  do  acts  the  motive  of  which  is  to  damage  the  trade 
of  another.  Whether  I  should  agree  depends  on  the  meaning  to  be 
put  on  "  course  of  trade  "  and  "  molest."  But  it  is  clear  that  the 
Master  of  the  Rolls  means  conduct  which  would  give  a  cause  of  ac- 
tion against  an  individual.  He  cites  Sir  William  Erie  in  support  of 
his  proposition,  who  clearly  is  speaking  of  acts  which  would  be  action- 
able in  an  individual,  and  there  is  no  such  act  here.  The  Master  of 
the  Rolls  says  the  lowering  of  the  freight  far  beyond  a  lowering  for 
any  purpose  of  trade  was  not  an  act  done  in  the  exercise  of  their  free 
right  of  trade,  but  for  the  purpose  of  interfering  with  the  plaintiffs' 
right  to  a  free  course  of  trade ;  therefore  a  wrongful  act  as  against 
the  plaintiffs'  right;  and  as  injury  to  the  plaintiffs  followed,  they  had 

'  ThiB  Hffms  to  bo  iihIdk  the  wf)rrl  "  conspiracy  "  In  a  sense  different  from  the 
orrJlnarv.  It  Ik  (,'<-rnT:illy  conHuIcred  to  moan  a  combination  to  do  an  unlawful  thing 
or   a    liiwful    tliliiK    in    an    unlawful    way. 

'  I-ord  KHher.  dlHHentlnt;  In  the  Court  of  Appeal. 

»'J.'{  Q.  15.   1).  COT. 


CHAP.    XI.]  PROCURING   REFUSAL   TO    CONTRACT.  353 

a  right  of  action.  I  cannot  agree.  If  there  were  two  shopkeepers 
in  a  village  and  one  sold  an  article  at  cost  price,  not  for  profit  there- 
fore but  to  attract  customers  or  cause  his  rival  to  leave  off  selling 
the  article  only,  it  could  not  be  said  he  was  liable  to  an  action.  I 
cannot  think  that  the  defendants  did  more  than  they  had  a  legal 
right  to  do.  I  adopt  the  vigorous  language  and  opinion  of  Fry,  L.  J. : 
"  To  draw  a  line  between  fair  and  unfair  competition,  between  what 
is  reasonable  and  unreasonable,  passes  the  powers  of  the  courts."  ^  It 
is  a  strong  thing  for  the  plaintiffs  to  complain  of  the  very  practices 
they  wished  to  share  in,  and  once  did. 

I  am  of  opinion  that  the  judgment  should  be  affirmed. 

Appeal  dismissed  with  costs. 

[The  other  judges  concurred,  some  in  opinions  at  length.] 

Note :  The  following  American  cases  were  referred  to  by  counsel  for 
the  plaintiffs :  Stanton  v.  Allen,  5  Denio,  434 ;  State  v.  Glidden,  cited 
in  State  v.  Stewart,  59  Am.  Eep.  at  pp.  721,  724;  Morris  Run  Coal  Co. 
V.  Barclay  Coal  Co.  68  Penn.  St.  173,  186;  Hooker  v.  Vandewater, 
4  Denio,  349 ;  Salt  Co.  v.  Guthrie,  35  Ohio  St.  G66,  672 ;  People  v. 
North  River  Sugar  Refining  Co.  54  Hun,  354. 

In  the  Court  of  Appeal,  Bowen,  L.  J.,  said  upon  the  subject  of 
malice  (23  Q.  B.  D.  612-615):  "We  are  invited  by  the  plaintiffs' 
counsel  to  accept  the  position  from  which  their  argument  started,  — 
that  an  action  will  lie  if  a  man  maliciously  and  wrongfully  conducts 
himself  so  as  to  injure  another  in  that  other's  trade.  Obscurity  re- 
sides in  the  language  used  to  state  this  proposition.  The  terms 
'  maliciously,'  '  wrongfully,'  and  '  injure '  are  words  all  of  which  have 
accurate  meanings,  well  known  to  the  law,  but  which  also  have  a 
popular  and  less  precise  signification,  into  which  it  is  necessary  to 
see  that  the  argument  does  not  imperceptibly  slide. 

"  An  intent  to  '  injure '  in  strictness  means  more  than  an  intent  to 
harm.  It  connotes  an  intent  to  do  wrongful  harm.  '  Maliciously,'  in 
like  manner,  means  and  implies  an  intention  to  do  an  act  which  is 
wrongful,  to  the  detriment  of  another.  The  term  '  wronsfful '  im- 
ports  in  its  turn  the  infringement  of  some  right.  The  ambiguous 
proposition  to  which  we  were  invited  by  the  plaintiifs'  counsel,  still, 
therefore,  leaves  unsolved  the  question  of  what,  as  between  the  plain- 
tiffs and  defendants,  are  the  rights  of  trade.  For  the  purpose  of 
clearness  I  desire,  as  far  as  possible,  to  avoid  terms  in  their  popular 
use  so  slippery,  and  to  translate  them  into  less  fallacious  language 
wherever  possible. 

"  The  English  law,  which  in  its  earliest  stages  began  with  but  an 
imperfect  line  of  demarcation  between  torts  and  breaches  of  con- 
tract, presents  us  with  no  scientific  analysis  of  the  degree  to  which 
the  intent  to  harm,  or  in  the  language  of  the  civil  law,  the  animus 
vicino  nocendi.  may  enter  into  or  affect  the  conception  of  a  personal 

»23  Q.  B.  D.   625,  626. 


354  MOGUL   STEAMSHIP    CO.    V.    MCGREGOR.  [CIIAP.   XI. 

wrong.  See  Chasemore  v.  Richards.^  x\ll  personal  wrong  means  the 
infringement  of  some  personal  right.  '  It  is  essential  to  an  action  in 
Tort/  say  the  Privy  Council  in  Rogers  v.  Rajendro  Dutt,^  '  that  the 
act  complained  of  should  under  the  circumstances  be  legally  wrong- 
ful as  regards  the  party  complaining;  that  is,  it  must  prejudicially 
affect  him  in  some  legal  right;  merely  that  it  will,  however  directly, 
do  a  man  harm  in  his  interests  is  not  enough.' 

"  What  then  were  the  rights  of  the  plaintiffs  as  traders  as  against 
the  defendants?  The  plaintiffs  had  a  right  to  be  protected  against 
certain  kind  of  conduct;  and  we  have  to  consider  what  conduct 
would  pass  this  legal  line  or  boundary.  Now,  intentionally  to  do 
that  which  is  calculated  in  the  ordinary  course  of  events  to  damage, 
and  which  does  in  fact  damage  another  in  tliat  other  person's  prop- 
erty or  trade,  is  actionable  if  done  without  just  cause  or  excuse. 
Such  intentional  action,  when  done  without  just  cause  or  excuse, 
is  what  the  law  calls  a  malicious  wrong  (see  Bromagc  v.  Prosser;^ 
Capital  &  County  Bank  v.  Henty,  per  Lord  Blackburn*).  The  acts 
of  the  defendants  which  are  complained  of  here  were  intentional,  and 
were  also  calculated,  no  doubt,  to  do  the  plaintiffs  damage  in  their 
trade.  But  in  order  to  see  whether  they  were  wrongful  we  have  still 
to  discuss  the  question  whether  they  were  done  without  any  just  cause 
or  excuse.  Such  just  cause  or  excuse,  the  defendants  on  their  side 
assert  to  be  found  in  their  positive  right  (subject  to  certain  limita- 
tions) to  carry  on  their  own  trade  freely  in  the  mode  and  manner 
that  best  suits  them,  and  which  they  think  best  calculated  to  secure 
their  own  advantage. 

"  What  then  are  the  limitations  which  the  law  imposes  on  a  trader 
in  the  conduct  of  his  business  as  between  himself  and  other  traders? 
There  seem  to  be  no  burdens  or  restrictions  in  law  upon  a  trader 
which  arise  merely  from  the  fact  that  he  is  a  trader,  and  which  are 
not  equally  laid  on  all  other  subjects  of  the  Crown.  .  .  .  No  man 
whether  a  trader  or  not  can,  however,  justify  damaging  another  in 
his  commercial  business  by  fraud  or  misrepresentation.  Intimida- 
tion, obstruction,  and  molestation  are  forbidden ;  so  is  the  intentional 
procurement  of  a  violation  of  individual  rights,  contractual  or  other, 
assuming  always  that  there  is  no  just  cause  for  it.  .  .  .  But  the  de- 
fendants have  been  guilty  of  none  of  these  acts.  They  have  done 
nothing  more  against  the  plaintiffs  than  to  pursue  to  the  bitter  end 
a  war  of  competition  waged  in  the  interest  of  their  own  trade.  To 
the  argument  that  a  competition  so  pursued  ceases  to  have  a  just 
cause  or  excuse  when  there  is  ill-will  or  a  personal  intention  to  harm, 
it  is  sufficient  to  reply  (as  I  have  already  pointed  out)  that  there  was 
here  no  personal  intention  to  do  any  other  or  greater  harm  to  the 

17  11.  L.  CiiH.   .340.  at  p.  388. 

»  1.".  Moore,   r.  C.  20!). 

»4  v..  &  (\  247. 

*7  App.  Cub.  741,  at  p.  772. 


CHAP.  XI.]       PROCURING  REFUSAL  TO  CONTRACT.  355 

plaintifTs  than  such  as  was  necessarily  involved  in  the  desire  to  attract 
to  the  defendants'  ships  the  entire  tea  freights  of  the  ports,  a  portion 
of  which  would  otherwise  have  fallen  to  the  plaintiffs'  share.  I  can 
find  no  authority  for  the  doctrine  that  such  a  commercial  motive 
deprives  of  just  cause  or  excuse  acts  done  in  the  course  of  trade,  which 
would  but  for  such  a  motive  be  justifiable.  So  to  hold  would  be  to 
convert  into  an  illegal  motive  the  instinct  of  self-advancement  and 
self-protection,  which  is  the  very  incentive  to  all  trade.  .  .  ." 


BEREY  V.  DONOVAN. 

Supreme  Court  of  Massachusetts,  June,  1905.     188  Mass.  353. 

The  case  is  stated  in  the  opinion. 

Knowlton,  C.  J.  This  is  an  action  of  tort  brought  to  recover 
damages  sustained  by  reason  of  the  defendant's  malicious  interfer- 
ence with  the  plaintiff's  contract  of  employment.  The  plaintiff  was 
a  shoemaker,  employed  by  the  firm  of  Hazen  B.  Goodrich  and  Com- 
pany at  Haverhill,  Massachusetts,  under  a  contract  terminable  at  will. 
At  the  time  of  the  interference  complained  of  he  had  been  so  em- 
ployed for  nearly  four  years.  The  defendant  was  the  representative 
at  Haverhill  of  a  national  organization  of  shoe  workers,  called  the 
Boot  and  Shoe  Workers'  Union,  of  which  he  was  also  a  member.  The 
evidence  showed  that  he  induced  Goodrich  and  Company  to  discharge 
the  plaintiff,  greatly  to  his  damage.  A  few  days  before  the  plaintiff's 
discharge,  a  contract  was  entered  into  between  the  Boot  and  Shoe 
Workers'  Union  and  t1ie  firm  of  Goodrich  and  Company,  which  was 
signed  by  the  defendant  for  the  union,  the  second  clause  of  which 
was  as  follows :  "  In  consideration  of  the  foregoing  valuable  privileges, 
tlie  employer  agrees  to  hire  as  shoe  workers,  only  members  of  the 
Boot  and  Shoe  Workers'  Union,  in  good  standing,  and  further  agrees 
not  to  retain  any  shoe  worker  in  his  employment  after  receiving 
notice  from  tlie  union  that  such  shoe  worker  is  objectionable  to  the 
union,  either  on  account  of  being  in  arrears  for  dues,  or  disobedi- 
ence of  union  rules  and  laws,  or  from  any  other  cause."  The  contract 
contained  various  other  provisions  in  regard  to  the  employment  of 
members  of  the  union  by  the  firm,  and  the  rights  of  tlie  firm  and  of 
the  union  in  reference  to  the  services  of  these  employees,  and  the  use 
of  the  union's  stamp  upon  goods  to  be  manufactured. 

The  plaintiff  was  not  a  member  of  this  union.  Soon  after  the 
execution  of  this  contract,  the  defendant  demanded  of  Goodrich  and 
Company  that  the  plaintiff  be  discharged,  and  the  evidence  tended  to 
show  that  the  sole  ground  for  the  demand  was  that  the  plaintiff  was 


356  BERRY    V.    DONOVAN.  [CIIAP.    XI. 

not  a  member  of  the  unions  and  that  he  persistently  declined  to  join 
it,  after  repeated  suggestions  that  lie  should  do  so. 

At  the  close  of  the  evidence  the  defendant  asked  for  the  following 
instructions  which  the  judge  declined  to  give: 

"  1.  Upon  all  the  evidence  in  the  case,  the  plaintiff  is  not  entitled 
to  recover. 

"  2.  Upon  all  the  evidence  in  the  case,  the  defendant  was  acting  as 
the  legal  representatives  of  the  Boot  and  Shoe  Workers'  Union  and 
not  in  his  personal  capacity,  and  therefore  the  plaintiff  cannot  recover. 

"  3.  The  contract  between  the  Boot  and  Shoe  Workers'  Union  and 
Hazen  B.  Goodrich  and  Company  was  a  valid  contract,  and  the  de- 
fendant, as  the  legal  representative  of  the  Boot  and  Shoe  Workers' 
Union,  had  a  right  to  call  the  attention  of  Hazen  B.  Goodrich  and 
Company,  or  any  member  of  the  firm,  to  the  fact  that  they  were 
violating  the  terms  of  the  contract  in  keeping  the  plaintiff  in  their 
employment  after  the  contract  was  signed,  and  insisting  upon  an  ob- 
servance of  the  terms  of  the  contract,  even  if  the  defendant  knew 
that  the  observance  of  the  terms  of  the  contract  would  result  in  the 
discharge  of  the  plaintiff  from  their  employment. 

"  4.  The  contract  referred  to  was  a  legal  contract,  and  a  justifica- 
tion of  the  acts  of  the  defendant,  as  shown  by  the  evidence  in  this 
case." 

"  6.  The  defendant  cannot  be  held  responsible  in  this  action,  unless 
it  appears  that  the  defendant  used  threats,  or  some  act  of  intimida- 
tion, or  some  slanderous  statements,  or  some  unlawful  coercion  to  or 
against  the  employers  of  the  plaintiff,  to  thereby  cause  the  plaintiff's 
discharge;  and  upon  all  the  evidence  in  the  case  there  is  no  such 
evidence,  and  the  plaintiff  cannot  recover." 

The  defendant  excepted  to  the  refusal,  and  to  the  portions  of  the 
charge  which  were  inconsistent  with  the  instructions  requested.  The 
jury  returned  a  verdict  of  $1,500  for  the  plaintiff.  These  exceptions 
present  the  only  questions  which  were  argued  before  us  by  the 
defendant. 

The  primary  right  of  the  plaintiff  to  have  the  benefit  of  his  contract 
and  to  remain  undisturbed  in  the  performance  of  it  is  universally 
recognized.  The  right  to  dispose  of  one's  labor  as  he  will,  and  to 
have  the  benefit  of  one's  lawful  contract,  is  incident  to  the  freedom  of 
the  individual,  which  lies  at  the  foundation  of  the  government  in  all 
countries  that  maintain  tlie  principles  of  civil  liberty.  Such  a  right 
can  lawfully  be  interfered  wilh  only  by  one  who  is  acting  in  the  exer- 
cise of  an  equal  or  su])eri()r  right  which  comes  in  conflict  with  the 
other.  An  intentional  intc'rfcrence  with  such  a  right,  without  lawful 
justification,  is  malicious  in  law,  even  if  it  is  from  good  motives  and 
without  express  malice.  Walker  v.  Cronin,  107  Mass.  555,  562. 
Plant  V.  Woods,  17fi  Mass.  492,  498.  Allen  v.  Flood  [1898]  A.  C.  1, 
18.     ATogiil  Sicatiisliip  Co.  v.  McGregor,  23  Q.  B.  D.  598,  013.    Read 


CHAP.    XI.]  PROCUUING   REFUSAL   TO    CONTRACT.  357 

V.  Friendly  Society  of  Operative  Stonemasons,  [1902]  2  K.  B.  89,  96. 
Giblan  v.  National  Amalgamated  Labourer's  Union,  [1903]  2  K.  B. 
600,  617. 

In  the  present  case  the  judge  submitted  to  the  jury,  first,  the  ques- 
tion whether  the  defendant  interfered  with  the  plaintiff's  rights 
under  his  contract  with  Goodrich  and  Company,  and  secondly  the 
question  whether,  if  he  did,  the  interference  was  without  justifiable 
cause.  The  jury  were  instructed  that,  unless  the  defendant's  inter- 
ference directly  caused  the  termination  of  the  plaintill's  employ- 
ment, there  could  be  no  recovery.  The  substance  of  the  defendant's 
contention  was,  that  if  he  acted  under  the  contract  between  the  Boot 
and  Shoe  Workers'  Union  and  the  employer  in  procuring  the  plain- 
tiff's discharge,  his  interference  was  lawful. 

This  contention  brings  us  to  an  examination  of  the  contract.  That 
part  which  relates  to  the  persons  to  be  employed  contains,  first,  a 
provision  that  the  employer  will  hire  only  members  of  the  union. 
This  has  no  application  to  the  plaintiff's  case,  for  it  is  an  agreement 
only  for  the  future,  and  the  plaintiff  had  been  hired  a  long  time 
before.  The  next  provision  is,  that  the  employer  will  not  retain  in 
his  employment  a  worker,  after  receiving  notice  that  he  is  objection- 
able to  the  union,  "  either  on  account  of  being  in  arrears  for  dues,  or 
disobedience  of  union  rules  or  laws,  or  from  any  other  cause."  The 
first  two  possible  causes  for  objection  could  not  be  applied  to  persons 
in  the  situation  of  the  plaintiff,  who  were  not  members  of  the  union 
or  amenable  to  its  laws.  As  to  such  persons  the  only  provision  ap- 
plicable was  that  the  firm  would  not  retain  a  worker  who  was  objec- 
tionable to  the  union  from  any  cause,  however  arbitrary  the  objection, 
or  unreasonable  the  cause  might  be.  This  provision  purported  to 
authorize  the  union  to  interfere  and  deprive  any  workman  of  his 
employment  for  no  reason  whatever,  in  the  arbitrary  exercise  of  its 
power.  Whatever  the  contracting  parties  may  do  if  no  one  but  them- 
selves is  concerned,  it  is  evident  that,  as  against  the  workman,  a  con- 
tract of  this  kind  does  not  of  itself  justify  interference  with  his  em- 
ployment, by  a  third  person  who  made  the  contract  with  his  employer. 
Curran  v.  Galen,  152  N.  Y.  33.  No  one  can  legally  interfere  with 
the  employment  of  another,  unless  in  the  exercise  of  some  right  of 
his  own,  which  the  law  respects.  His  will  so  to  interfere  for  his  own 
gratification  is  not  such  a  right. 

The  judge  rightly  left  to  the  jury  the  question  whether,  in  view 
of  all  the  circumstances,  the  interference  was  or  was  not  for  a  jus- 
tifiable cause.  If  the  plaintiff's  habits,  or  conduct,  or  character  had 
been  such  as  to  render  him  an  unfit  associate,  in  the  shop,  for  ordi- 
nary workmen  of  good  character,  that  would  have  been  a  sufficient 
reason  for  interference  in  behalf  of  his  shopmates.  We  can  conceive 
of  other  good  reasons.  But  the  evidence  tended  to  show  that  the  only 
reason  for  procuring  his  discharge  was  his  refusal  to  join  the  union. 


358  BERRY    V.    DONOVAN.  [CHAP.    XI. 

The  question,  therefore,  is  whether  the  jury  might  find  that  such  an 
interference  was  unlawful. 

The  only  argument  that  we  have  heard  in  support  of  interference 
by  labor  unions,  in  cases  of  this  kind,  is  that  it  is  justifiable  as  a 
kind  of  competition.  It  is  true  that  fair  competition  in  business 
brings  persons  into  rivalry,  and  often  justifies  action  for  one's  self, 
which  interferes  with  proper  action  of  another.  Such  action,  on 
both  sides,  is  the  exercise  by  competing  persons  of  equal  conflicting 
rights.  The  principle  appealed  to  would  justify  a  member  of  the 
union,  who  was  seeking  employment  for  himself,  in  making  an  offer 
to  serve  on  such  terms  as  would  result,  and  ae  he  knew  would  result, 
in  the  discharge  of  the  plaintiff  by  his  employer,  to  make  a  place  for 
the  newcomer. 

Such  an  offer,  for  such  a  purpose,  would  be  unobjectionable.  It 
would  be  merely  the  exercise  of  a  personal  right,  equal  in  importance 
to  the  plaintiff's  right.  But  an  interference  by  a  combination  of 
persons,  to  obtain  the  discharge  of  a  workman  because  he  refuses  to 
comply  with  their  wishes,  for  their  advantage,  in  some  matter  in 
which  he  has  a  right  to  act  independently,  is  not  competition.  In 
such  a  case  the  action  taken  by  the  combination  is  not  in  the  regular 
course  of  their  business  as  employees,  either  in  the  service  in  which 
they  are  engaged,  or  in  an  effort  to  obtain  employment  in  other  serv- 
ice. The  result  which  they  seek  to  obtain  cannot  come  directly  from 
anything  that  they  do  within  the  regular  line  of  their  business  as 
workers  competing  in  the  labor  market.  It  can  come  only  from 
action  outside  of  the  province  of  workingmen,  intended  directly  to 
injure  another,  for  the  purpose  of  compelling  him  to  submit  to  their 
dictation. 

It  is  difficult  to  see  how  the  object  to  be  gained  can  come  within 
the  field  of  fair  competition.  If  we  consider  it  in  reference  to  the 
right  of  employees  to  compete  with  one  another,  inducing  a  person 
to  join  a  union  has  no  tendency  to  aid  them  in  such  competition. 
Indeed  the  object  of  organizations  of  this  kind  is  not  to  make  com- 
petition of  employees  with  one  another  more  easy  or  successful.  It 
is  rather,  by  association,  to  prevent  such  competition,  to  bring  all  to 
equality,  and  to  make  them  act  togetlicr  in  a  common  interest. 
Plainly  then,  interference  with  one  working  under  a  contract,  with 
a  view  to  compel  him  to  join  a  union,  cannot  be  justified  as  a  part  of 
the  competition  of  workmen  with  one  another. 

We  understand  that  the  attempted  justification  rests  entirely  upon 
another  kind  of  so-called  competition,  namely,  competition  between 
etnployers  and  the  em])loyed,  in  the  attempt  of  each  class  to  obtain 
as  large  a  sliare  as  possible  of  the  income  from  their  combined 
efforts  in  the  industrial  field.  In  a  strict  sense  this  is  hardly  competi- 
tion. It  is  a  struggle  or  contention  of  interests  of  different  kinds, 
which  are  in  opposition,  so  far  as  the  division  of  profits  is  concerned. 


CHAP.    XI.]  PROCURING   REFUSAL   TO    CONTRACT.  359 

In  a  broad  sense,  perhaps  the  contending  forces  may  be  called  com- 
petitors. At  all  events,  we  may  assume  that,  as  between  themselves, 
the  principle  which  warrants  competition  permits  also  reasonable 
efforts,  of  a  proper  kind,  which  have  a  direct  tendency  to  benefit  one 
party  in  his  business  at  the  expense  of  the  other.  It  is  no  legal 
objection  to  action  whose  direct  effect  is  helpful  to  one  of  the  parties 
in  the  struggle  that  it  is  also  directly  detrimental  to  the  other.  But 
when  action  is  directed  against  the  other,  primarily  for  the  purpose 
of  doing  him  harm  and  thus  compelling  him  to  yield  to  the  demand 
of  the  actor,  and  this  action  does  not  directly  affect  the  property,  or 
business,  or  status  of  the  actor,  the  case  is  different,  even  if  the  actor 
expects  to  derive  a  remote  or  indirect  benefit  from  the  act. 

The  gain  which  a  labor  union  may  expect  to  derive  from  inducing 
others  to  join  it,  is  not  an  improvement  to  be  obtained  directly  in 
the  conditions  under  which  the  men  are  working,  but  only  added 
strength  for  such  contests  with  employers  as  may  arise  in  the 
future.  An  object  of  this  kind  is  too  remote  to  be  considered  a  benefit 
in  business,  such  as  to  justify  the  infliction  of  intentional  injury 
upon  a  third  person  for  the  purpose  of  obtaining  it.  If  such  an  object 
were  treated  as  legitimate,  and  allowed  to  be  pursued  to  its  complete 
accomplishment,  every  employee  would  be  forced  into  membership  in 
a  union,  and  the  unions,  by  a  combination  of  those  in  different  trades 
and  occupations,  would  have  complete  and  absolute  control  of  all  the 
industries  of  the  country.  Employers  would  be  forced  to  yield  to  all 
their  demands,  or  give  up  business.  The  attainment  of  such  an  object 
in  the  struggle  with  employers  would  not  be  competition,  but 
monopoly.  A  monopoly,  controlling  anything  which  the  world  must 
have,  is  fatal  to  prosperity  and  progress.  In  matters  of  this  kind  the 
law  does  not  tolerate  monopolies.  The  attempt  to  force  all  laborers 
to  combine  in  unions  is  against  the  policy  of  the  law,  because  it  aims 
at  monopoly.  It  therefore  does  not  justify  causing  the  discharge,  by 
his  employer,  of  an  individual  laborer  working  under  a  contract.  It 
is  easy  to  see  that,  for  different  reasons,  an  act  which  might  be  done  in 
legitimate  competition  by  one,  or  two,  or  three  persons,  each  proceed- 
ing independently,  might  take  on  an  entirely  different  character, 
both  in  its  nature  and  its  purpose,  if  done  by  hundreds  in  combina- 
tion. 

We  have  no  desire  to  put  obstacles  in  the  way  of  employees,  who  are 
seeking  by  combination  to  obtain  better  conditions  for  themselves  and 
their  families.  We  have  no  doubt  that  laboring  men  have  derived 
and  may  hereafter  derive  advantages  from  organization.  We  only 
say  that,  under  correct  rules  of  law,  and  with  a  proper  regard  for  the 
rights  of  individuals,  labor  unions  cannot  be  permitted  to  drive  men 
out  of  employment  because  they  choose  to  work  independently.  If 
disagreements  between  those  who  furnish  the  capital  and  those  who 
perform  the  labor  employed  in  industrial  enterprises  are  to  be  settled 


360  BERRY  V.    DONOVAN.  [CHAP.  XI. 

only  by  industrial  wars,  it  would  give  a  great  advantage  to  combina- 
tions of  employees,  if  they  could  be  permitted,  by  force,  to  obtain  a 
monopoly  of  the  labor  market.  But  we  are  hopeful  tbat  this  kind 
of  warfare  soon  will  give  way  to  industrial  peace,  and  that  rational 
methods  of  settling  such  controversies  will  be  adopted  universally. 

The  fact  that  the  plaintiff's  contract  was  terminable  at  will,  instead 
of  ending  at  a  stated  time,  does  not  affect  his  right  to  recover.  It 
only  affects  the  amount  that  he  is  to  receive  as  damages.  Moran  v. 
Dunphy,  177  Mass.  485,  487.  Perkins  v.  Pendleton,  90  Maine  166, 
176.  Lucke  v.  Clothing  Cutters'  and  Trimmers'  Assembly,  77  Md. 
396.  London  Guarantee  and  Accident  Co.  v.  Horn,  101  111.  App.  355; 
S.  C.  206  111.  493. 

The  conclusion  we  have  reached  is  well  supported  by  authority. 
The  principle  invoked  is  precisely  the  same  as  that  which  lies  at  the 
foundation  of  the  decision  in  Plant  v.  Woods,  176  Mass.  492.  In  that 
case  although  the  power  that  lies  in  combination  and  the  methods 
often  adopted  by  labor  unions  in  the  exercise  of  it  were  stated  with 
great  clearness  and  ability,  the  turning  point  of  the  decision  is  found 
in  this  statement  on  page  502 :  "  The  necessity  that  the  plaintiffs 
should  join  this  association  is  not  so  great,  nor  is  its  relation  to  the 
rights  of  the  defendants,  as  compared  with  the  right  of  the  plaintiffs 
to  be  free  from  molestation,  such  as  to  bring  the  acts  of  the  defend- 
ants under  the  shelter  of  the  principles  of  trade  competition."  Carew 
V.  Rutherford,  106  Mass.  1.  Walker  v.  Cronin,  107  Mass.  555,  and 
the  other  cases  cited  in  Plant  v.  Woods,  ubi  supra,  as  well  as  the  later 
case  of  Martell  v.  White,  185  Mass.  255,  all  tend  to  support  us  in  our 
decision. 

We  long  have  had  a  statute  forbidding  the  coercion  or  compulsion 
by  any  person  of  any  other  "  person  into  a  written  or  verbal  agreement 
not  to  join  or  become  a  member  of  a  labor  organization  as  a  condition 
of  his  securing  employment  or  continuing  in  the  employment  of  such 
person."  R.  L.  c.  106,  §  12.  The  same  principle  would  justify  a 
prohibition  of  the  coercion  or  compulsion  of  a  person  into  a  written 
or  verbal  agreement  to  join  such  an  organization,  as  a  condition  of 
his  securing  employment,  or  continuing  in  the  employment  of  another 
person. 

The  latest  English  cases,  which  explain  and  modify  Allen  v.  Flood, 
[1898]  A.  C.  1,  seem  in  harmony  with  our  conclusion.  Giblan  v. 
National  Amalgamated  Labourers'  Union,  [1903]  2  K.  B.  600. 
Quinn  v.  Lcathem,  [1901]  A,  C.  495.^  In  the  first  of  these  it  was 
held  that  a  labor  union  could  not  use  its  power  to  deprive  one  of 
employment,  in  order  to  compel  him  to  pay  a  debt  in  which  the  union 
was  interested.  1'he  case  of  Curran  v.  Galen,  152  N".  Y.  33,  in  the 
decision  of  which  the  judges  of  the  court  of  appeals  were  unanimous, 
fully  covers  the  present  case.     The  principle  involved  in  each  of  the 

« ro8t.  p.  .302. 


CHAP.    XI.]  PROCURING    REFUSAL   TO    CONTRACT.  361 

two  cases  is  the  same,  and  tlie  language  of  the  opinion  in  that  case,  in 
its  application  to  this,  is  decisive.  From  the  decision  of  National 
Protective  Assoc,  v.  Gumming,  170  N.  Y.  315,  three  of  the  seven 
judges  dissented,  and  the  result  is  to  leave  the  law  of  New  York  in 
some  uncertainty.  The  majority  distinguished  that  case  from  Curran 
V.  Galen,  just  referred  to,  and  held  that  their  decision  was  not  in- 
consi.-t.nl  with  it.  They  seem  to  have  treated  the  arrangement  to 
exclude  persons  not  belonging  to  the  union  as  entered  into  for  legiti- 
mate purposes,  having  reference  to  actual  or  probable  conditions  in  the 
employment;  while  the  minority  treated  it  as  similar  to  the  arrange- 
ment that  appears  in  Gurran  v.  Galen.  See  also  Jacobs  v.  Gohen,  90 
N.  Y.  Supp.  854;  Mills  v.  United  States  Printing  Go.  99  App.  Div. 
(N.  Y.)  605. 

The  law  of  Illinois  is  in  accord  with  our  conclusion.  In  London 
Guarantee  and  Accident  Go.  v.  Horn,  101  111.  App.  355;  S.  G.  206 
111.  493,  it  was  held  that  the  refusal  of  a  workman  to  accede  to  the 
request  of  another  in  a  matter  affecting  the  pecuniary  interest  of  the 
other  would  not  justify  the  procurement  of  his  discharge  from  the 
employment  in  which  he  was  engaged,  under  a  contract  terminable  at 
will.  See  also,  for  kindred  doctrines,  Doremus  v.  Hennessy,  176  111. 
608;  Ghristensen  v.  People,  114  111.  App.  40;  Mathews  v.  People,  202 
111.  389 ;  Erdman  v.  Mitchell,  207  Penn.  St.  79 ;  Perkins  v.  Pendle- 
ton, 90  Maine,  166.  Other  cases  bearing  more  or  less  directly  upon 
the  general  subject  are  Lucke  v.  Glothing  Gutters'  and  Trimmers' 
Assembly,  77  Md.  396;  Haider  v.  Gannon  Manuf.  Go.  135  N.  G.  392; 
Ghipley  v.  Atkinson,  23  Fla.  206;  Blumenthal  v.  Shaw,  77  Fed.  Rep. 
954 ;  Barr  v.  Essex  Trades  Gouncil,  8  Dick.  101 ;  Jersey  Gity  Printing 
Go.  V.  Gassidy,  18  Dick.  759;  Grnmp  v.  Gommonwealth,  84  Va.  927; 
Old  Dominion  Steamship  Go.  v.  McKenna,  30  Fed.  Eep.  48 ;  Brown 
V.  Jacobs  Pharmacy  Go.,  115  Ga.  429 ;  Bailey  v.  Master  Plumbers,  103 
Tenn.  99 ;  Delz  v.  Winfree,  80  Tex.  400.  It  will  be  seen  that  in  the 
different  courts  there  is  considerable  variety  and  some  conflict  of 
opinion. 

We  hold  that  the  defendant  w^as  not  justified  by  the  contract  with 
Goodrich  and  Gompany,  or  by  his  relations  to  the  plaintiff,  in  interfer- 
ing with  the  plaintiff's  employment  under  his  contract.  How  far 
the  principles  which  we  adopt  would  apply,  under  different  conceiv- 
able forms  of  contract,  to  an  interference  with  a  workman  not  en- 
gaged, but  seeking  employment,  or  to  different  methods  of  boycotting, 
we  have  no  occasion  in  this  case  to  decide. 

The  defendant  contends  that  the  judge  erred  in  his  instruction  to 
the  jury,  in  response  to  the  defendant's  special  request  at  the  close  of 
the  charge.  The  judge  said,  in  substance,  that  if  the  defendant 
caused  the  firm  to  discharge  the  plaintiff,  by  giving  the  members  to 
understand  that,  unless  they  discharged  him,  they  "  would  be  visited 
with  some  punishment,  under  the  contract  or  otherwise,  then  that 


362  QUINN    V.    LEATHEM.  [CHAP.   XI. 

interference  would  not  be  justifiable."  This  instruction,  taken 
literally  and  alone,  would  be  erroneous.  Some  grounds  of  interference 
would  be  justifiable  while  others  would  not.  But  considering  the  in- 
struction in  connection  with  that  which  immediately  preceded  it,  and 
with  other  parts  of  the  charge,  it  is  evident  that  the  judge  was  direct- 
ing the  attention  of  the  jury  to  what  would  constitute  an  interference, 
not  to  what  would  justify  an  interference.  He  had  just  told  them 
that,  if  all  the  defendant  did  was  to  call  the  attention  of  the  firm  to 
the  provision  of  the  contract,  and  the  firm  then,  of  their  own  motion, 
discharged  the  plaintiff,  the  defendant  would  not  be  liable.  He  then 
pursued  the  subject  with  some  elaboration,  and  ended  as  stated  above. 
Instead  of  saying,  "  then  that  interference  would  not  be  justifiable," 
he  evidently  meant  to  say,  "  then  that  would  be  interference  which 
would  create  a  liability,  unless  it  was  justifiable."  Taking  the  charge 
as  a  whole,  we  think  the  jury  were  not  misled  by  the  inaccuracy  of 
this  statement. 

Exceptions  overruled. 


QUINN  V.  LEATHEM. 
Privy  Council  of  England,  August,  1901.    A.  C.  495. 

The  case  is  stated  in  the  opinion. 

Lord  Brampton.  My  Lords,  this  case  now  awaiting  your  Lord- 
ships' final  judgment  ...  is  an  action  originally  brought  in  the  High 
Court  in  Ireland  by  Henry  Leathem,  the  respondent,  as  plaintiff, 
against  Joseph  Quinn  (the  sole  appellant)  and  four  other  persons, 
named  respectively  John  Craig  (now  dead),  John  Davey,  Henry 
Dornan,  and  Robert  Shaw,  as  defendants,  to  recover  damages  for  a 
wrongful  interference  with  the  plaintiff's  business  of  a  butcher  at 
Lisburn,  a  few  miles  from  Belfast.  For  upwards  of  twenty  years 
before  July,  1895,  Leathem  had  carried  on  business  in  Lisburn,  hav- 
ing as  one  of  his  constant  customers  Andrew  Munce  (now  also  dead), 
who  kept  a  butcher's  shop  at  Belfast,  to  whom  he  supplied  weekly 
twenty  or  thirty  pounds'  worth  of  the  best  meat;  and  he  had  in  his 
employ  as  assistants  several  men  at  weekly  wages. 

In  February,  1893,  a  trade  union  society  was  registered  under  the 
Trade  Union  Acts  of  1871  and  1876,  by  "the  name  of  "  The  Belfast 
Journeymen  Butchers  and  Assistants'  Association."  Of  this  society 
Craig  was  president,  Quinn  treasurer,  and  T)avey  secretary;  tliey 
were  original  members;  the  other  defendants,  Dornan  and  Shaw, 
joined  subsequently  as  mere  ordinary  members.  Leathem  was  not 
a  member,  nor  were  any  of  his  assistants.  The  members  of  the  society 
amongst   themselves   soon   adopted   an   unregistered   rule   that   they 


CHAP.    XI.]  PROCURING   REFUSAL   TO    CONTRACT.  363 

would  not  work  with  non-union  men,  nor  would  they  cut  up  meat 
that  came  from  a  place  where  non-union  hands  were  employed;  but 
there  was  no  evidence  that,  prior  to  July,  1895,  this  had  been  pro- 
ductive of  any  conflict  between  Leathem's  men  and  the  union. 

Early  in  that  month,  however,  Leathern,  on  the  invitation  of  Davey, 
attended  a  meeting  of  the  society  held  at  Lisburn.  All  the  defend- 
ants were  there.  The  occurrences  at  this  meeting  showed  the  exist- 
ence of  an  angry  feeling,  and  an  overbearing  determination  on  the 
part  of  the  defendants  to  compel  Leathem  to  employ  none  but  union 
men,  which  culminated  in  the  lawless  conduct,  the  subject  of  this 
action. 

Leathem  had  at  that  time  among  his  assistants  a  man  named 
Robert  Dickie,  a  family  man,  with  young  children  dependent  upon 
him ;  this  man  had  been  in  his  employ  for  ten  years.  He  was  desirous 
of  keeping  him  and  all  the  others  employed  by  him  in  his  service, 
but  still  of  doing  anything  in  reason  to  conciliate  the  societ3^  But 
I  had  better  let  him  tell  his  account  of  this  meeting  in  his  own  words, 
as  he  told  it  to  the  jury.  "  I  said  that  I  came  on  behalf  of  my  men, 
and  was  ready  to  pay  all  fines,  debts,  and  demands  against  them; 
and  I  asked  to  have  them  admitted  to  the  society.  The  defendant 
Shaw  got  up  and  objected  to  their  being  allowed  to  work  on,  and  to 
their  admission,  and  said  that  my  men  should  be  put  out  of  my  em- 
ployment, and  could  not  be  admitted,  and  should  walk  the  streets 
for  twelve  months.  I  said  that  it  was  a  hard  case  to  make  a  man 
walk  the  streets  with  nine  small  children,  and  I  would  not  submit  to 
it.  Shaw  moved  a  resolution  that  my  assistants  should  be  called  out; 
a  man  named  Morgan  seconded  the  resolution,  and  it  was  carried. 
Craig  was  in  the  chair;  I  was  sitting  beside  him.  He  said  there 
were  some  others  there  that  would  suit  me  as  well.  He  picked  some 
out  and  said  they  could  work  for  me.  I  said  they  were  not  suitable 
for  my  business,  and  I  would  keep  the  men  I  had.  They  said  I  had 
to  take  them.  I  said  I  would  not  put  out  my  men.  Craig  then  spoke, 
and  told  me  my  meat  would  be  stopped  in  Andrew  Munce's  if  I  would 
not  comply  with  their  wishes." 

The  chairman  spoke  truly;  for  on  September  6  the  secretary  of 
the  society  wrote  to  Leathem,  asking  "  whether  he  had  made  up  his 
mind  to  continue  to  employ  non-union  labor,"  adding,  "  If  you  con- 
tinue as  at  present,  our  society  will  be  obliged  to  adopt  extreme 
measures  in  your  case."  He  wrote  also  to  Mr.  Munce  on  Septem- 
ber 13,  stating  that  a  deputation  had  been  appointed  to  wait  upon 
him  to  come  to  a  decision  in  regard  to  his  purchase  of  meat  from 
Leathem  &  Sons,  as  they  were  anxious  to  have  a  settlement  at  once. 
To  this  letter  Mr.  Munce  sent,  on  September  14,  a  very  sensible  reply: 
"  It  is  quite  out  of  my  province  to  interfere  with  the  liberty  of  any 
man.  But  why  refer  to  me  in  the  matter?  I  do  not  think  it  fair 
for  you  to  come  at  me,  seeing  it  appears  to  be  the  Messrs.  Leathem 


364  QUINN"   V.    LEATHEM.  [CHAP.    XI. 

that  you  wish  to  interfere  with."  A  deputation,  which  included  Craig, 
Quinn,  Shaw,  and  Dornan,  had  an  interview  with  a  son  of  Mr.  A. 
Munce,  and  on  September  17  he  wrote  to  the  secretary  the  reply  of 
his  father,  "  that  he  could  not  interfere  to  bring  pressure  to  bear  on 
Mr.  Leathern  to  employ  none  but  society  men  by  refusing  to  purchase 
meat  from  him,  as  that  would  be  outside  his  province  and  interfering 
with  the  liberty  of  another  man."  The  18th  of  Septeml:)er  brought 
a  definite  announcement  from  the  secretary  to  Mr.  Munce  that,  hav- 
ing failed  to  make  a  satisfactory  arrangement  with  I\Ir.  Leathern, 
they  had  no  other  alternative  but  to  instruct  his  (Munce's)  em- 
ployees "to  cease  work  immediately  Leathem's  beef  arrives."  There- 
upon Mr.  Munce  was  constrained  to  send  to  Leathern  on  Septem- 
ber 20  a  telegram :  "  Unless  you  arrange  with  society  you  need  not 
send  any  beef  this  week,  as  men  are  ordered  to  quit  work."  On  and 
from  that  day  Munce  took  no  more  meat  from  Leathem,  to  his  sub- 
stantial loss. 

Another  mode  adopted  by  several  of  the  defendants  with  a  view 
to  prevent  persons  dealing  with  Leathem  was  the  publication  through- 
out the  district  of  Lisburn  of  "  black  lists  "  containing  and  holding 
up  to  odium,  not  only  his  name,  but  the  names  of  persons  who  dealt 
with  him,  as  a  warning  to  those  persons  that  if  they  wished  their 
names  to  be  removed  from  the  lists  they  must  have  no  more  dealings 
with  him  or  any  other  non-society  shops.  Amongst  others,  a  man 
named  McBride,  a  customer  of  Leathem,  was  operated  on  by  this 
mode,  and  ceased  to  deal  with  him;  attempts  were  also  made  by 
means  of  such  lists  to  influence  two  other  men  named  Davis  and 
Hastings.  With  the  object  of  further  inconveniencing  Leathem  in 
his  trade,  two  of  his  weekly  servants,  Eice  and  McDonnell,  who  had 
been  non-union  men,  were  somehow  or  other  induced  to  join  the 
society  and  to  quit  their  service  with  Leathem.  It  is  true  they  gave 
due  notice  of  their  intention  to  do  so,  and  as  regards  them,  therefore, 
no  separate  cause  of  action  could  be  maintained.  But  it  is  significant 
that  after  they  had  left  their  service  they  were  paid  by  the  society 
during  the  time  they  were  out  of  work  weekly  sums  of  money  as 
compensation  for  the  wages  they  would  have  earned  with  Leathem. 
As  regards  the  assistant,  Robert  Dickie,  he  left  his  service  without 
any  notice  in  the  middle  of  a  week,  and  so  wrongfully  broke  his  con- 
tract with  his  employers,  and  there  was  an  abundance  of  evidence 
that  he  was  induced  to  do  that  wrongful  act  through  the  unjustifi- 
able influence  of  the  defendants,  for  Dickie's  evidence  at  the  trial 
was  that  lie  was  brought  out  of  Loatbom's  shop  by  Eice  to  a  meeting 
of  the  society  in  a  room  over  the  defendant  Dornan's  shop;  that 
Shaw  (another  defendant)  was  there;  that  they  wanted  him  to  leave 
Leathem  because  the  rest  were  out,  and  promised  to  pay  him  what 
he  bad  from  Leathem ;  that  he  left,  and  was  paid  by  Eice  for  the 
society  and  was  tlien  in  Dornan's  service. 


CHAP.  XI.]       PROCURING  REFUSAL  TO  CONTRACT.  365 

The  case  came  on  for  trial  at  the  Belfast  Assizes  in  July,  1896, 
before  Fitzgibbon,  L.  J.,  and  a  special  jury.  The  pleadings  charged 
in  the  first  four  counts,  as  separate  causes  of  action,  (1)  the  pro- 
curing Munce  to  break  contracts  he  had  made  with  Leathern;  (2) 
the  publication  by  the  defendants  of  "black  lists";  (3)  the  intimi- 
dation of  Munce  and  other  persons  to  break  their  contracts;  and  (4) 
the  coercion  of  Dickie  and  other  servants  to  leave  the  service  of  the 
plaintiff.  Each  of  these  counts  alleged  that  the  acts  complained  of 
were  done  "  wrongfully  and  maliciously,  and  with  intent  to  injure 
the  plaintiff,  and  to  have  occasioned  him  actual  loss,  injury,  and 
damage."  The  fifth  and  last  count  charged,  also  as  a  separate  cause 
of  action,  that  the  defendants  unlawfully  and  maliciously  conspired 
together,  and  with  others,  to  do  the  various  acts  complained  of  in  the 
previous  counts,  with  intent  to  injure  the  plaintiff  and  his  trade  and 
business,  and  that  by  reason  of  the  conspiracy  he  was  injured  and 
damaged  in  his  trade.     Damages  and  an  injunction  were  claimed. 

The  evidence  adduced  I  have  already  set  forth  substantially.  At 
the  conclusion  of  it  Mr.  O'Shaughnessy,  Q.  C,  for  the  defendants, 
submitted  that  they  were  entitled  to  a  nonsuit  upon  the  grounds  that 
there  was  no  evidence  of  a  contract  between  Munce  and  Leathern, 
nor  of  any  pecuniary  damage  to  the  plaintiff  by  reason  of  the  acts 
of  the  defendants,  and  that  the  acts  of  the  defendants  were  legitimate. 
The  learned  Lord  Justice  refused  to  nonsuit,  and  I  think  he  rightly 
refused.  For  there  was  clearly  evidence  for  the  consideration  of  the 
jury  upon  one  or  more  of  (I  think  upon  all)  the  causes  of  action. 
I  need  not  discuss  that  point  further,  for  it  was  practically  disposed 
of  during  the  argument  before  this  House. 

No  evidence  was  called  for  the  defendants.  I  regret  that  no  short- 
hand note  of  the  summing-up  of  the  Lord  Justice  was  furnished  to 
your  Lordships.  We  have,  however,  a  copy  of  the  learned  Judge's 
own  notes  and  memoranda.  From  a  careful  perusal  of  these  I  am 
satisfied  that  every  indulgence  that  could  have  been  reasonably  given 
to  the  learned  counsel  in  presenting  his  case  to  the  jury  was  allowed 
him,  and  I  am  satisfied  that  he  must  be  taken  to  have  acquiesced  in 
the  form  in  which  the  questions  submitted  for  the  consideration  of 
the  jury  were  left  to  them,  even  though  it  might  otherwise  have  been 
open  to  criticism. 

After  commenting  upon  the  evidence  relied  upon  by  the  plaintiff 
as  proof  of  actionable  misconduct,  he  told  the  jury  that  they  had  to 
consider  whether  the  interests  and  actions  of  the  defendants  went 
beyond  the  limits  which  would  not  be  actionable,  namely,  securing 
or  advancing  their  own  interests  or  those  of  their  trade  by  reasonable 
means,  including  lawful  combination,  or  whether  their  acts,  as  proved, 
were  intended  and  calculated  to  injure  the  plaintiff  in  his  trade 
through  a  combination  and  with  a  common  purpose  to  prevent  the 
free  action  of  his  customers  and  servants  in  dealing  with  him,  and 


366  QUINN    V.    LEATHEM.  [CHAP.   XI, 

with  the  effect  of  actually  injuring  him  as  distinguished  from  acts 
legitimately  done  to  secure  or  advance  their  own  interests;  that  acts 
done  with  the  object  of  increasing  the  profits  or  raising  the  wages 
of  any  combination  of  persons,  such  as  the  society  to  which  the  de- 
fendants belonged,  by  reasonable  and  legitimate  means  were  per- 
fectly lawful,  and  were  not  actionable  so  long  as  no  wrongful  act  was 
maliciously  —  that  is  to  say,  intentionally  —  done  to  injure  a  third 
party.  To  constitute  such  a  wrongful  act  for  the  purposes  of  this 
case,  he  told  the  jury  that  they  must  be  satisfied  that  there  had  been 
a  conspiracy,  a  common  intention  and  a  combination  on  the  part  of 
the  defendants,  to  injure  the  plaintiff  in  his  business,  and  that  acts 
must  be  proved  to  have  been  done  by  the  defendants  in  furtherance 
of  that  intention  which  had  inflicted  actual  money  loss  upon  the 
plaintiff  in  his  trade.  And  having  so  told  the  jury,  he  proposed  to 
put  to  them  as  the  question  they  had  to  try  upon  the  evidence. 
Whether  the  acts  of  the  defendants  were  or  were  not  in  that  sense 
actionable  ? 

I  have  thought  it  right,  as  near  as  possible,  to  follow  the  language 
of  the  Lord  Justice,  for  that  charge  was  delivered  before  Allen  v. 
Flood,  [1898]  A.  C.  1,  was  decided  in  this  House.  In  substance  I 
think  it  was  correct,  having  regard  to  the  case  before  him.  In  some 
respects  it  seems  to  me  that  it  was  a  little  too  favorable  to  the  de- 
fendants, but  even  had  it  been  otherwise  it  was  uttered  in  the  pres- 
ence of  the  defendants'  counsel,  who  desired  and  was  allowed  then 
and  there  to  make  such  objections  as  he  thought  fit  to  it.  He  made 
four  only:  first,  that  the  judge  had  given  no  definition  of  damage; 
second,  that  he  had  told  the  jury  that  the  liability  of  the  defendants 
depended  on  a  question  of  law.  These  two  questions  were  to  my 
mind  conclusively  answered  in  the  summing-up:  see  p.  23  of  Ap- 
pendix. 

A  third  objection  was  that  the  question  relating  to  the  black  list 
should  be  separately  left  to  the  jury.  It  was  then  so  left,  and  as  to 
that  the  judge  directed  them  that  there  was  not  sufficient  evidence 
to  connect  Quinn  and  Craig  with  the  black  lists.  By  this  I  take  it 
he  meant  not  as  an  independent  cause  of  action,  there  being,  in  fact, 
no  evidence  of  Quinn's  personal  participation  in  the  publication  of 
those  lists.  But  that  left  him  still  affected  by  them  as  overt  acts  of 
the  conspiracy,  for  each  of  which  every  one  of  the  conspirators  is 
liable,  and  the  evidence  touching  the  black  lists  was  beyond  all  ques- 
tion admissible  under  the  conspiracy  count. 

The  fourth  objection  was  that  there  was  no  evidence  of  any  binding 
contract  having  been  broken  through  the  action  of  the  defendants; 
but  the  judge  then  again  declined  to  withdraw  that  question  of  con- 
tract from  the  jury,  and  I  think  he  was  right  in  so  refusing  at  that 
stage  of  the  trial ;  and  at  a  later  stage,  after  the  whole  matter  had 
been  disposed  of  under  the  conspiracy  count,  he  rightly  refrained 


CHAP.    XI. J  PROCURING    REFUSAL   TO    CONTRACT.  367 

from  putting  the  question  at  all,  because  it  had  become  unnecessary. 
At  the  request  of  the  learned  counsel,  however,  he  divided  the  single 
general  question  he  at  first  proposed  into  the  three  separate  ques- 
tions—  (1)  Did  the  defendants,  or  any  of  them,  wrongfully  and 
maliciously  induce  the  customers  or  servants  of  the  plaintiff  named 
in  the  evidence  to  refuse  to  deal  with  the  plaintiff?  (2)  Did  the  de- 
fendants, or  any  two  or  more  of  them,  maliciously  conspire  to  induce 
the  plaintiff's  customers  or  servants  named  in  the  evidence,  or  any 
of  them,  not  to  deal  with  the  plaintiff  or  not  to  continue  in  his  em- 
ployment, and  were  such  persons  so  induced  not  to  do  so?  (3)  Did 
the  defendants  Davey,  Dornan,  and  Shaw,  or  any  of  them,  publish 
the  "  black  list "  with  intent  to  injure  the  plaintiff  in  his  business, 
and,  if  so,  did  the  publication  so  injure  him?  The  jury  answered 
each  of  these  questions  in  the  affirmative,  and  assessed  the  damages 
against  all  the  defendants  at  £200;  and  with  regard  to  the  third 
question,  they  found  against  the  defendants  Dornan,  Davey,  and 
Shaw,  with  an  additional  £50  as  damages  against  them  only.  Judg- 
ment was  given  in  accordance  with  that  verdict. 

If,  my  Lords,  before  that  judgment  was  given  the  counsel  for 
either  party  had  felt  it  of  importance  that  the  specific  issues  raised 
upon  each  count  should  be  determined  by  the  jury,  the  learned  judge 
would,  no  doubt,  have  applied  himself  to  attain  that  object;  but  when, 
as  it  oftentimes  happens  in  the  course  of  a  trial,  it  is  obvious  to 
everybody  concerned  in  it  that  the  case  may  conveniently  be  deter- 
mined by  the  answer  of  the  jury  to  one  general  comprehensive  ques- 
tion involving  the  whole  of  the  material  matters  at  issue,  and  all 
parties  either  expressly  or  tacitly  acquiesce  in  that  view,  and  such 
question  is  accordingly  put  to  and  answered  by  the  jury,  neither  party 
can  afterwards  hark  back  to  the  original  issues  raised  by  the  pleader 
on  the  record  long  before  it  was  possible  for  him  to  know  how  the 
case  can  best  be  dealt  with  when  the  evidence  is  all  disclosed.  Here 
the  real  substantial  question  was  whether  there  had  existed  between 
all  or  any  two  or  more  of  the  defendants  an  unlawful  conspiracy  to 
injure  the  plaintiff  in  his  trade,  and,  if  so,  whether  the  plaintiff 
had  been  specially  injured  thereby,  all  the  wrongful  acts  charged  in 
the  previous  counts  being  treated  as  overt  acts  of  such  conspiracy. 
To  support  that  conspiracy  count  it  was  not  essential  that  every  overt 
act  alleged  should  be  proved,  but  only  a  sufficient  number  of  them  to 
support  the  count.  The  issues  on  that  count  having  been  found  liy 
the  jury,  and  damages  assessed  in  favor  of  the  plaintiff,  the  separate 
issues  became  immaterial,  since  they  had  already  been  treated  as  in- 
corporated for  all  purposes  of  the  action  in  it.  I  note,  in  confirmation 
of  this,  that  the  Lord  Justice  pointedly  told  the  jury  that  proof  of 
a  conspiracy  was  essential  to  the  support  of  the  action. 

In  substance,  this  finding  of  the  jury  amounted  to  a  general  verdict 
against  all  the  defendants,  except  on  the  issue  relating  to  the  black 


368  QUINN    V.    LEATHEM.  [CHAP.    XI. 

lists,  with  £200  damages,  and  as  to  that  issue  against  Davey,  Dornan, 
and  Shaw  only,  with  separate  and  further  damages,  £50. 

Eightly  understood,  I  think  the  judgment  in  Allen  v.  Flood,  [1898] 
A.  C.  1,  is  harmless  to  the  present  case.  But  I  need  hardly  say  that, 
in  order  properly  to  understand  and  appreciate  it,  it  is  essential  to 
ascertain  what  were  the  material  facts  assumed  to  exist  by  their 
Lordships  who  assented  to  that  judgment,  and  what  were  the  prin- 
ciples of  law  applied  by  them  to  those  facts.  This  necessity  will  be 
more  apparent  when  it  is  realized  that  unanimity  of  opinion  as  to 
the  facts  certainly  did  not  prevail,  that  the  judges  who  were  called 
upon  to  render  their  assistance  to  the  House  were  requested  to  answer 
this  one  simple  question  only,  namely,  "  Assuming  the  evidence  given 
by  the  plaintiffs'  witnesses  to  be  correct,  was  there  any  evidence  of 
a  cause  of  action  fit  to  be  left  to  the  jury?  "  This  evidence  was  only 
to  be  found  in  the  Appendix  handed  to  each  of  the  judges  as  contain- 
ing the  evidence  referred  to,  and  to  that  evidence  the  judges  naturally 
applied  themselves,  and  upon  it  their  opinions  were  formed.  That 
evidence  of  the  plaintiffs'  witnesses  most  certainly  did  not  altogether 
coincide  with  some  very  material  facts  assumed  by  their  Lordships; 
this  will  account  for  variance  in  the  views  expressed  as  to  the  legal 
rights  and  alleged  wrongful  acts  of  the  parties.  It  would  be  an  end- 
less task  to  endeavor  to  reconcile  all  these  differences  of  fact  and 
opinion;    I  will  not,  therefore,  make  the  attempt. 

Some  of  this  confusion  arose  no  doubt  from  the  course  taken, 
rightly  or  wrongly  at  the  trial,  when  all  questions  of  conspiracy,  in- 
timidation, coercion,  or  breach  of  contract  were  withdrawn  from  the 
jury,  the  only  matters  of  fact  found  by  them  being  that  Allen  mali- 
ciously induced  the  Glengall  Company  to  discharge  Flood  and  Taylor 
from  their  employment,  and  not  to  engage  them  again,  and  that  each 
plaintiff  bad  suffered  £20  damages. 

I  collect  from  the  case,  as  reported,  that  it  was  assumed  by  their 
Lordships  tliat  the  Glengall  Company  were  under  no  contractual  obli- 
gation to  retain  the  plaintiffs  Flood  and  Taylor  in  their  service  for 
any  duration  of  time,  but  might  dismiss  them  from  their  employment 
at  any  moment  it  was  their  will  so  to  do,  and  that  the  boiler-makers 
were  working  under  the  same  conditions;  that  Allen  in  making  the 
communication  which  induced  the  Glengall  Company  to  dismiss  the 
plaintiffs  was  doing  only  that  which  he  had  a  legal  right  to  do,  and 
they  held,  therefore,  that  the  plaintiffs  had  no  legal  cause  of  action 
against  either  the  Glengall  Company  or  tbe  defendant,  and  that  the 
mere  fact  as  found  by  the  jury  that  the  defendant  was  actuated  by 
a  malicious  motive  could  not  convert  a  rigbtful  into  a  wrongful  act. 

This  latter  proposition,  that  the  exercise  of  an  absolutely  legal 
right  cannot  be  treated  as  wrongful  and  actionable  merely  because 
a  irialicirtus  intention  prompted  such  exercise,  was  esfa])lished  as  clear 
law  by  this  House  in  Bradford  Corporation  v.  Pickles,  [1895]  A.  C 


CHAP.    XI.]  PROCURING   REFUSAL   TO    CONTRACT.  369 

587,  and  it  is  now  too  late  to  dispute  it,  even  if  one  were  disposed  to  do 
so,  which  I  am  not.  It  must  not,  however,  be  supposed  that  a  malicious 
intention  can  in  no  case  be  material  to  the  maintenance  of  an  action. 
It  is  commonly  used  to  defeat  the  defence  of  privilege  to  do  or  to 
say  that  which  without  privilege  would  be  wrongful  and  actionable. 

Take  the  familiar  instance  of  an  action  for  malicious  prosecution. 
It  is  not  a  wrongful  act  for  any  person,  who  honestly  believes  that  he 
has  reasonable  and  probable  cause,  though  he  has  it  not  in  fact,  to 
put  the  criminal  law  in  motion  against  another ;  but  if  to  the  absence 
of  such  reasonable  and  probable  cause  a  malicious  motive  operating 
upon  the  mind  of  such  prosecutor  is  added,  that  which  would  have 
been  a  rightful  (in  the  sense  of  a  justifiable)  act  if  done  without 
malice  becomes  with  malice  wrongful  and  actionable.  What  would 
constitute  such  malice  it  is  not  material  for  the  purposes  of  this  case 
to  define.  Of  course,  if  when  he  instituted  criminal  proceedings  the 
prosecutor  knew  he  had  no  reasonable  ground  for  the  steps  he  was 
taking,  the  definition  of  malice  given  by  Bayley,  J.,  in  Bromage  v. 
Prosser,  4  B.  &  C.  247;  28  E.  R.  241,  would  distinctly  apply,  and  no 
further  proof  of  malice  would  be  required;  but  if  he  really  believed 
he  had  such  reasonable  cause,  although  in  fact  he  had  it  not,  and  was 
actuated  not  by  such  belief  alone,  but  also  by  personal  spite  or  a 
desire  to  bring  about  the  imprisonment  of  or  other  harm  to  the  ac- 
cused, or  to  accomplish  some  other  sinister  object  of  his  own,  that  per- 
sonal enmity  or  sinister  motive  would  be  quite  sufficient  to  establish 
the  malice  required  by  law  to  complete  a  cause  of  action  —  that  is, 
if  such  malice  was  found  as  a  fact  by  the  jury. 

In  this  case  the  alleged  cause  of  action  is  very  different  from  that 
in  Allen  v.  Flood,  [1898]  A.  C.  1.  It  is  not  dependent  upon  coercion 
to  break  any  particular  contract  or  contracts,  though  such  causes  of 
action  are  introduced  into  the  claim;  but  the  real  and  substantial 
cause  of  action  is  an  unlawful  conspiracy  to  molest  the  plaintiff,  a 
trader  in  carrying  on  his  business,  and  by  so  doing  to  invade  his 
undoubted  right,  thus  described  by  Alderson,  B.,  in  delivering  the 
judgment  of  the  Exchequer  Chamber  in  Hilton  v.  Eckersley,  6  E.  & 
B.  74 :  "  Prima  facie  it  is  the  privilege  of  a  trader  in  a  free  country 
in  all  matters  not  contrary  to  law  to  regulate  his  own  mode  of  carry- 
ing it  on  according  to  his  own  discretion  and  choice.  If  the  law 
has  in  any  matter  regulated  or  restrained  his  mode  of  doing  this,  the 
law  must  be  obeyed.  But  no  power  short  of  the  general  law  ought  to 
restrain  his  free  discretion." 

To  this  I  would  add  the  emphatic  expression  of  the  Lord  Chan- 
cellor, Lord  Halsbury,  in  the  Mogul  Case,  [1892]  A.  C.  38:  i  "  All  are 
free  to  trade  upon  what  terms  they  will ; "  and  of  Lord  Bramwell, 
who  in  Reg.  v.  Druitt,  10  Cox  C.  C.  600,  in  a  passage  quoted  by  Lord 
Halsbury  in  the  same  case,  [1892]  A.  C.  at  p.  73,  said :  "  The  liberty 

lAnte.  p.  346. 


370  QUINN    V.    LEATHEM.  [CHAP.   XI. 

of  a  man's  mind  and  will  to  say  how  he  should  bestow  himself  and  his 
means,  his  talents  and  his  industry,  was  as  much  a  subject  of  the  law's 
protection  as  was  that  of  his  body."  Again,  Sir  W.  Erie  thus  ex- 
presses himself :  "  Every  person  has  a  right  under  the  law  as  between 
himself  and  his  fellow-subjects  to  full  freedom  in  disposing  of  his  own 
labor  or  his  own  capital  according  to  his  will.  It  follows  that  every 
other  person  is  subject  to  the  correlative  duty  arising  therefrom,  and 
is  prohibited  from  any  obstruction  to  the  fullest  exercise  of  this  right 
which  can  be  made  compatible  with  the  exercise  of  similar  rights  by 
others."  Erie  on  Trade  Unions,  p.  12.  I  am  not  aware  that  the 
rights  thus  stated  have  ever  been  seriously  questioned.  I  rest  my 
judgment  upon  the  principle  expressed  in  these  few  sentences.  I 
seek  for  no  more. 

The  remedy  for  the  invasion  of  a  legal  right  is  thus  stated  by  Lord 
Watson  in  his  judgment  in  Allen  v.  Flood,  [1898]  A.  C.  at  p.  92: 
"  Any  invasion  of  the  civil  rights  of  another  person  is  in  itself  a  legal 
wrong,  carrying  with  it  liability  to  repair  its  necessary  or  natural  con- 
sequences in  so  far  as  these  are  injurious  to  the  person  whose  right 
is  infringed." 

I  cannot  suppose  any  intelligent  person  reading  the  evidence  ad- 
duced on  the  trial  of  this  case  failing  to  come  to  the  conclusion  that 
the  acts  complained  of  amounted  to  a  serious  and  wrongful  invasion 
of  the  plaintiff's  trade  rights,  and  I  am  at  a  loss  to  comprehend  upon 
what  ground  it  is  that  the  defendants  seek  to  justify  or  excuse  their 
action  towards  him. 

As  members  of  a  trade  union  society  they  have  no  more  legal 
right  to  commit  what  would  otherwise  be  unlawful  wrongs  than  if  the 
association  to  which  they  are  attached  had  never  come  into  existence. 
They  have  no  more  right  to  coerce  others  pursuing  the  same  calling 
as  themselves  to  join  their  society,  or  to  adopt  their  views  or  rules, 
than  those  who  differ  from  them  and  belong  to  other  trade  associa- 
tions would  have  a  right  to  coerce  them.  The  legislature  in  con- 
ferring upon  trades  unions  such  privileges  as  are  contained  in  the 
Trade  Union  Acts,  1871  and  1870,  docs  not  empower  them  to  do 
more  than  make  rules  for  the  regulation  of  their  own  conduct  and  to 
provide  for  their  own  mutual  assistance,  and  leaves  each  member  as 
free  to  cease  to  belong  to  it  and  to  repudiate  every  obligation  for 
future  observance  of  its  rules  as  though  he  had  never  joined  it;  and 
most  certainly  it  has  not  conferred  upon  any  association  or  any  mem- 
ber of  it  a  license  to  obstruct  or  interfere  with  the  freedom  of  any 
other  person  in  carrying  on  his  business  or  bestowing  his  labor  in 
the  way  he  thinks  fit,  provided  only  that  it  is  lawful :  see  Erie,  eT.,  in 
Keg.  V.  Rowlands,  (1851)  2  Den.  C.  C.  304;  and  although  a  combina- 
tion of  members  of  a  trade  union  for  certain  purposes  is  no  longer  un- 
lawful and  criminal  as  a  conspiracy  merely  because  the  objects  of  that 
combination  are  in  restraint  of  trade,  no  protection  is  given  to  any 


CHAP.    XI.]  PKOCUIMNG    REFUSAL   TO    CONTRACT.  371 

combination  or  conspiracy  which  before  the  passing  of  the  Act  of 
1871  would  have  been  criminal  for  other  reasons. 

Not  a  word  is  to  be  found  in  the  Trade  Union  Acts  or  in  the  Con- 
spiracy Act  of  1875  sanctioning  such  conduct  as  that  complained  of. 
Indeed,  one  cannot  read  the  7th  section  of  the  latter  Act  imposing 
penalties  for  undue  coercion  and  intimidation  witliout  seeing  that  it 
had  no  intention  to  tolerate  such  proceedings  as  in  this  case  are  com- 
plained of,  but  rather  to  protect  those  upon  whom  coercive  measures 
might  be  practised.  I  may  also  note  that  the  3rd  section  of  that  Act 
does  not  apply  to  civil  proceedings  by  action. 

It  would  not  be  useful  to  examine  again  all  the  numerous  cases 
upon  the  citation  and  discussion  of  which  much  time  has  been  ex- 
pended, for  not  one  of  them  would  really  assist  the  appellant  in  de- 
fence of  his  or  his  co-conspirators'  conduct. 

The  Mogul  Case,  [1892]  A.  C.  25,  contains  no  doubt  a  mass  of  valu- 
able, interesting,  and  useful  law  as  to  the  length  to  which  competing 
traders  may  go  in  pushing  and  endeavoring  to  promote  their  respect- 
ive interests,  and  yet  keep  within  bounds  that  are  legal,  though  the 
stronger  and  more  wealthy  of  them  may  sometimes  press  hardly  upon 
the  weaker  whose  capital  is  limited.  One  trader  may  by  his  mode  of 
carrying  on  his  trade  hold  out  attractions  and  allurements  which  may 
enlist  so  many  of  his  rival's  customers  as  will  well-nigh,  perhaps 
wholly,  destroy  his  trade. 

But  not  a  word  will  be  found  in  that  case,  justifying  an  active 
interference  with  the  right  of  every  trader  to  carry  on  his  business 
in  his  own  manner,  so  long  as  he  does  not  interfere  with  a  similar 
legal  right  which  is  vested  in  his  neighbor  and  observes  the  correlative 
duty  pointed  out  by  Sir  W.  Erie. 

My  noble  friend,  the  Lord  Chancellor,  accurately  summed  up  the 
position  of  things  in  the  Mogul  Case,  [1892]  A.  C.  25,  in  these  words: 
''  What  legal  right  was  interfered  with  ?  What  coercion  of  the  mind, 
will,  or  person  is  effected?  All  are  free  to  trade  on  what  terms  they 
will,  and  nothing  has  been  done  except  in  rival  trading  which  could 
be  supposed  to  interfere  with  the  appellant's  interests." 

But  I  will  not  linger  upon  a  consideration  of  what  may  be  done 
in  competition,  for  competition  is  not  even  suggested  as  a  justifica- 
tion of  the  acts  now  complained  of  —  acts  of  wanton  aggression  the 
outcome  of  a  malicious  but  successful  conspiracy  to  harm  the  plaintiff 
in  his  trade. 

It  cannot  be  —  it  was  not  even  suggested  —  that  these  acts  were 
done  in  furtherance  of  any  of  the  lawful  ol)jec-ts  of  the  association  as 
set  forth  in  their  registered  rules,  according  to  the  statutory  require- 
ments, or  in  support  of  any  lawful  right  of  the  association  or  any 
member  of  it,  or  to  obtain  or  maintain  fair  hours  of  labor  or  fair 
wages,  or  to  promote  a  good  understanding  between  employers  and 
employed  and  workman  and  workman,  or  for  the  settlement  of  any 


372  QUINN    V.    LEATHEM.  [CHAP.    XI. 

disjjute,  for  none  had  existence.  It  would,  indeed,  be  a  strange  mode 
of  promoting  such  good  understanding  to  coerce  a  tradesman's  cus- 
tomers to  leave  him  because  he  would  not,  at  the  bidding  of  tlie  as- 
sociation, dismiss  workmen  who  desired  to  continue  in  his  service  and 
whom  he  wished  to  retain  to  make  way  for  others  he  did  not  want. 

I  will  deal  now  with  the  conspiracy  part  of  the  claim,  respecting 
which  much  confusion  and  uncertainty  seems  somehow  to  have  arisen, 
which  I  find  it  difficult  to  understand.  I  have  no  intention,  however, 
to  embark  upon  a  history  of  the  law  relating  to  the  subject,  or  to  the 
old  and  obsolete  writ  of  conspiracy.  It  would  be  useless  for  our 
present  purpose. 

I  will  endeavor  briefly  to  state  how  I  view  the  matter  practically,  so 
far  as  it  concerns  this  case. 

A  conspiracy  consists  of  an  unlawful  combination  of  two  or  more 
persons  to  do  that  which  is  contrary  to  law,  or  to  do  that  which  is 
wrongful  and  harmful  towards  another  person.  It  may  be  punished 
criminally  by  indictment,  or  civilly  by  an  action  on  the  case  in  the 
nature  of  conspiracy  if  damage  has  been  occasioned  to  the  person 
against  whom  it  is  directed.  It  may  also  consist  of  an  unlawful  com- 
bination to  carry  out  an  object  not  in  itself  unlawful  by  unlawful 
means.  The  essential  elements,  whether  of  a  criminal  or  of  an  ac- 
tionable conspiracy  are,  in  my  opinion,  the  same,  though  to  sustain  an 
action  special  damage  must  be  proved.  This  is  the  substance  of  the 
decision  in  Barber  v.  Lesiter,  7  C.  B.  (N.  S.)  175.  I  quote  as  a 
very  instructive  definition  of  a  conspiracy  the  words  of  a  great  lawyer, 
Wiiles,  J.,  in  Mulcahy  v.  Eeg.,  (1868),  L.  R.  3  H.  L.  at  p.  317,  in  de- 
livering the  unanimous  opinion  of  himself,  Blackburn,  J.,  Bramwell, 
B.,  Keating,  J.,  and  Pigott,  B.,  which  was  adopted  by  this  House :  "  A 
conspiracy  consists  not  merely  in  the  intention  of  two  or  more,  but 
in  the  agreement  of  two  or  more  to  do  an  unlawful  act,  or  to  do  a 
lawful  act  by  unlawful  means.  So  long  as  such  a  design  rests  in 
intention  only  it  is  not  indictable.  ^Vhen  two  agree  to  carry  it  into 
effect,  the  very  plot  is  an  act  in  itself,  and  the  act  of  each  of  the 
parties,  promise  against  promise,  actus  contra  actum,  capable  of  be- 
ing enforced,  if  lawful,  punishable  if  for  a  criminal  object  or  for  the 
use  of  criminal  means.  .  .  .  The  number  and  the  compact  give 
weight  and  cause  danger." 

It  is  true  these  words  were  uttered  touching  a  criminal  case,  but 
they  are  none  the  less  applicable  to  conspiracies  made  the  subject  of 
civil  actions  like  the  present. 

In  1870,  Cockburn,  C.  J.,  in  delivering  the  unanimous  judgment  of 
Channel],  B.,  Cleasby,  B.,  Keating  and  Brett,  JJ.,  in  Beg.  v.  Warl)ur- 
ton,  L.  I{.  1  C.  C.  27G,  said :  "  It  is  not  necessary,  in  order  to  constitute 
a  conspiracy,  that  the  acts  agreed  to  be  done  should  be  acts  which  if 
done  shoulfl  he,  crinnnal.  It  is  enough  if  tlie  acts  agreed  to  be  done, 
altboiigh  not  criminal,  are  wrongful,  i.  e.,  amount  to  a  civil  wrong." 


CHAP.    XI,]  PROCURING   REFUSAL   TO    CONTRACT.  373 

It  has  often  been  debated  whether,  assuming  the  existence  of  a  con- 
spiracy to  do  a  wrongful  and  harmful  act  towards  another  and  to 
carry  it  out  by  a  number  of  overt  acts,  no  one  of  which  taken  singly 
and  alone  would,  if  done  by  one  individual  acting  alone  and  apart 
from  any  conspiracy,  constitute  a  cause  of  action,  such  acts  would  be- 
come unlawful  or  actionable  if  done  by  the  conspirators  acting  jointly 
or  severally  in  pursuance  of  their  conspiracy,  and  if  by  those  acts 
substantial  damage  was  caused  to  the  person  against  whom  the  con- 
spiracy was  directed:  my  own  opinion  is  that  they  would. 

In  dealing  with  the  question  it  must  be  borne  in  mind  that  a 
conspiracy  to  do  harm  to  another  is,  from  the  moment  of  its  forma- 
tion, unlawful  and  criminal,  though  not  actionable  unless  damage  is 
the  result. 

The  overt  acts  which  follow  a  conspiracy  form  of  themselves  no 
part  of  the  conspiracy:  they  are  only  things  done  to  carry  out  the 
illicit  agreement  already  formed,  and  if  they  are  sufficient  to  accom- 
plish the  wrongful  object  of  it,  it  is  immaterial  whether  singly  those 
acts  would  have  been  innocent  or  wrongful,  for  they  have  in  their 
combination  brought  about  the  intended  mischief,  and  it  is  the  wilful 
doing  of  that  mischief,  coupled  with  the  resulting  damage,  which  con- 
stitutes the  cause  of  action,  not  of  necessity  the  means  by  which  it 
was  accomplished. 

Much  consideration  of  the  matter  has  led  me  to  be  convinced  that 
a  number  of  actions  and  things  not  in  themselves  actionable  or  un- 
lawful if  done  separately  without  conspiracy  may,  with  conspiracy, 
become  dangerous  and  alarming,  just  as  a  grain  of  gunpowder  is 
harmless  but  a  pound  may  be  highly  destructive,  or  the  administra- 
tion of  one  grain  of  a  particular  drug  may  be  most  beneficial  as  a 
medicine  but  administered  frequently  and  in  larger  quantities  with  a 
view  to  harm  may  be  fatal  as  a  poison.  Many  illustrations  of  these 
views  might  be  suggested,  but  I  need  them  not  if  I  have  made  myself 
understood. 

The  cases  bearing  upon  the  subject  are  not  very  numerous:  the 
whole  subject  was  fully  discussed  in  the  Mogul  Case,  [1892]  A.  C.  25, 
in  each  of  its  stages  —  to  it  I  simply  refer.  Eex  v.  Journeymen 
Tailors  of  Cambridge,  8  Geo.  I,  8  Mod.  11,  was  an  indictment  for  a 
common  law  conspiracy  by  workmen  to  raise  wages.  On  objection 
taken  to  the  indictment  it  was  upheld  for  the  reason  given  that  the 
conspiracy  was  illegal,  although  the  matter  about  which  they  con- 
spired might  have  been  lawful  for  them  or  any  to  do  if  they  had  not 
conspired  to  do  it;  and  Eex  v.  Eccles,  1  Lea.  C.  C.  274,  before  Lord 
Mansfield,  was  an  indictment  for  a  conspiracy  by  indirect  means  to 
deprive  and  hinder  one  Booth  from  using  and  exercising  his  trade  of 
a  tailor,  and  in  pursuance  of  that  conspiracy  hindering  and  preventing 
him  from  following  his  said  trade  to  his  great  damage.  It  was  held 
unnecessary  to  set  out  the  means  by  which  the  intended  mischief 


374  QUINN    V.    LEATHEM.  [CHAP.    XI. 

was  effected,  "  for  the  offence  does  not  consist  in  doing  those  acts, 
for  they  may  be  perfectly  inditferent,  but  in  conspiring  with  a  view 
to  effect  the  intended  mischief  by  any  means.  The  illegal  combina- 
tion is  the  gist  of  the  offence."  See  also  per  Grose,  J.,  in  E.  v.  Maw- 
bey,  (1796),  6  T.  E.  C19;  3  E.  E.  282. 

If  I  rightly  understand  the  judgment  of  Darling,  J.,  in  Huttley  v. 
Simmons,  [1898],  1  Q.  B.  181,  he  treated  Allen  v.  Flood,  [1898 J, 
A.  C.  1,  as  a  binding  authority  compelling  him  to  hold  that  the  object 
of  the  conspiracy  as  proved  was  not  unlawful ;  in  that  view  he  rightly 
decided  that  the  count  for  conspiracy  could  not  be  maintained.  If  he 
had  held  that,  although  the  object  of  the  conspiracy  was  unlawful, 
yet  if  the  overt  acts  were  not  so,  because  they  would  not  have  been 
unlawful  if  done  by  one  individual  without  any  conspiracy,  and  had 
decided  on  that  ground,  I  should  have  differed. 

I  am  conscious  that  I  have  occupied  more  of  your  Lordships'  time 
than  I  had  intended,  but  the  case  is  of  real  importance,  and  I  feel 
that  such  unlawful  conduct  as  has  been  pursued  towards  Mr. 
Leathem  demanded  serious  attention.  I  think  the  law  is  with  him, 
and  that  the  damages  awarded  by  the  jury  are  under  the  circum- 
stances very  moderate.  It  is  at  all  times  a  painful  thing  for  any  indi- 
vidual to  be  the  object  of  the  hatred,  spite,  and  ill-will  of  any  one 
who  seeks  to  do  him  harm.  But  that  is  as  nothing  compared  to  the 
danger  and  alarm  created  by  a  conspiracy  formed  by  a  number  of  un- 
scrupulous enemies  acting  under  an  illegal  compact,  together  and 
separately,  as  often  as  opportunity  occurs  regardless  of  law,  and 
actuated  by  malevolence,  to  injure  him  and  all  who  stand  by  him. 
Such  a  conspiracy  is  a  powerful  and  dangerous  engine,  which  in  this 
case  has,  I  think,  been  employed  by  the  defendants  for  the  perpetra- 
tion of  organized  and  ruinous  oppression. 

I  think  the  judgment  in  the  Court  below  ought  to  be  affirmed  and 
this  appeal  dismissed  with  costs. 

Lord  Lindley.  My  Lords,  the  case  of  Allen  v.  Flood.  [1898]  A.  C. 
1,  has  so  important  a  bearing  on  the  present  appeal  that  it  is  neces- 
sary to  ascertain  exactly  what  this  House  really  decided  in  that  cele- 
brated case.  It  was  an  action  by  two  workmen  of  an  iron  company 
against  three  members  of  a  trade  union,  namely,  Allen  and  two 
others,  for  maliciously,  wrongfully,  and  with  intent  to  injure  the 
plaintiffs,  procuring  and  inducing  the  iron  company  to  dischnrge  the 
plaintiffs.  [1895]  2  Q.  B.  22,  23;  [1898]  A.  C.  3.  The  action  was 
tried  before  Kennedy,  J.,  who  ruled  that  there  was  no  evidence  to  go 
to  the  jury  of  conspiracy,  intimidation,  coercion,  or  breach  of  con- 
tract. The  result  of  the  trial  was  that  the  plaintiffs  obtained  a  ver- 
dict and  judgment  against  Allen  alone.  He  appealed,  and  the  only 
question  which  this  House  had  to  determine  was  whether  what  he  had 
done  entitled  ihe  plaintiffs  to  maintain  their  action  against  him. 
What  the  jury  found  that  he  had  done  was,  that  he  had  maliciously  in- 


CHAP.    XI.]  PROCURING   REFUS^Oi   TO    CONTRACT.  375 

duced  the  employers  of  the  plaintiffs  to  discharge  them,  whereby 
the  plaintiffs  suffered  damage.  Different  views  were  taken  by  the 
noble  Lords  who  heard  the  appeal  as  to  Allen's  authority  to  call  out 
the  members  of  the  union,  and  also  as  to  the  means  used  by  Allen  to 
induce  the  employers  of  the  plaintiffs  to  discharge  them;  but,  in 
the  opinion  of  the  noble  Lords  who  formed  the  majority  of  your  Lord- 
ship's House,  all  that  Allen  did  was  to  inform  the  employers  of  the 
plaintiffs  that  most  of  their  workmen  would  leave  them  if  they  did 
not  discharge  the  plaintiffs.  [1898]  A.  C.  p.  19,  Lord  Watson;  p. 
115,  Lord  Herschell;  pp.  147-150,  Lord  Macnaghten;  pp.  161,  165, 
Lord  Shand;  p.  175,  Lord  Davey;  p.  178,  Lord  James.  There  being 
no  question  of  conspiracy,  intimidation,  coercion,  or  breach  of  con- 
tract for  consideration  by  the  House,  and  the  majority  of  their  Lord- 
ships having  come  to  the  conclusion  that  Allen  had  done  no  more 
than  I  have  stated,  the  majority  of  the  noble  Lords  held  that  the  action 
against  Allen  would  not  lie;  that  he  had  infringed  no  right  of  the 
plaintiff's;  that  he  had  done  nothing  which  he  had  no  legal  right  to 
do,  and  that  the  fact  that  he  had  acted  maliciously  and  with  intent 
to  injure  the  plaintiffs  did  not,  without  more,  entitle  the  plaintiffs 
to  maintain  the  action. 

My  Lords,  this  decision,  as  I  understand  it,  establishes  two  propo- 
sitions: one  a  far-reaching  and  extremely  important  proposition  of 
law,  and  the  other  a  comparatively  unimportant  proposition  of  mixed 
law  and  fact,  useful  as  a  guide,  but  of  a  very  different  character  from 
the  first. 

The  first  and  important  proposition  is  that  an  act  otherwise  lawful, 
although  harmful,  does  not  become  actionable  by  being  done  mali- 
ciously in  the  sense  of  proceeding  from  a  bad  motive,  and  with  intent 
to  annoy  or  harm  another.  This  is  a  legal  doctrine  not  new  or  laid 
down  for  the  first  time,  in  Allen  v.  Flood,  [1898]  A.  C.  1 ;  it  had  been 
gaining  ground  for  some  time,  but  it  was  never  before  so  fully  and 
authoritatively  expounded  as  in  that  case.  In  applying  tliis  proposi- 
tion care,  however,  must  be  taken  to  bear  in  mind,  first,  that  in  Allen 
V.  Flood,  [1898]  A.  C.  1,  criminal  responsibility  had  not  to  be  consid- 
ered. It  would  revolutionize  criminal  law  to  say  that  the  criminal 
responsibility  for  conduct  never  depends  on  intention.  Secondly,  it 
must  be  borne  in  mind  that  even  in  considering  a  person's  liability  to 
civil  proceedings  the  proposition  in  question  only  applies  to  "  acts 
otherwise  lawful,"  i.  e.,  to  acts  involving  no  breach  of  duty,  or,  in 
other  words,  no  wrong  to  any  one.  I  shall  refer  to  this  matter  later 
on. 

The  second  proposition  is  that  what  Allen  did  infringed  no  right 
of  the  plaintiffs,  even  although  he  acted  maliciously  and  with  a  view 
to  injure  them.  I  have  already  stated  what  he  did,  and  all  that  he 
did,  in  the  opinion  of  the  majority  of  the  noble  Lords.  If  their  view 
of  the  facts  was  correct,  their  conclusion  that  Allen  infringed  no 


376  QUINN   V.    LEATHEM.  [CHAP.   XI. 

right  of  the  plaintiffs  is  perfectly  intelligible  and  indeed  unavoidable. 
Truly,  to  inform  a  person  that  others  will  annoy  or  injure  him  unless 
he  acts  in  a  particular  way  cannot  of  itself  be  actionable,  whatever 
the  motive  or  intention  of  the  informant  may  have  been. 

My  Lords,  the  questions  whether  Allen  had  more  power  over  the 
men  than  some  of  their  Lordships  thought,  and  whether  Allen  did 
more  than  they  thought,  are  mere  questions  of  fact.  Neither  of  these 
questions  is  a  question  of  law,  and  no  Court  or  jury  is  bound  as  a 
matter  of  law  to  draw  from  the  facts  before  it  inferences  of  fact 
similar  to  those  drawn  by  noble  Lords  from  the  evidence  relating  to 
Allen  in  the  case  before  them. 

I  will  pass  now  to  the  facts  of  this  case,  and  consider  (1)  what  the 
plaintiff's  rights  were;  (2)  what  the  defendants'  conduct  was;  (3) 
whether  that  conduct  infringed  the  plaintiff's  rights.  For  the  sake 
of  clearness  it  will  be  convenient  to  consider  these  questions  in  the 
first  place  apart  from  the  statute  which  legalizes  strikes,  and  in  the 
next  place  with  reference  to  that  statute. 

1.  As  to  the  plaintiff's  rights.  He  had  the  ordinary  rights  of  a 
British  subject.  He  was  at  liberty  to  earn  his  own  living  in  his  own 
way,  provided  he  did  not  violate  some  special  law  prohibiting  him 
from  so  doing,  and  provided  he  did  not  infringe  the  rights  of  other 
people.  This  liberty  involved  liberty  to  deal  with  other  persons  who 
were  willing  to  deal  with  him.  This  liberty  is  a  right  recognized  by 
law;  its  correlative  is  the  general  duty  of  every  one  not  to  prevent 
the  free  exercise  of  this  liberty,  except  so  far  as  his  own  liberty  of 
action  may  justify  him  in  so  doing.  But  a  person's  liberty  or  right 
to  deal  with  others  is  nugatory,  unless  they  are  at  liberty  to  deal  with 
him  if  they  choose  to  do  so.  Any  interference  with  their  liberty  to 
deal  with  him  affects  him.  If  such  interference  is  justifiable  in  point 
of  law,  he  has  no  redress.  Again,  if  such  interference  is  wrongful, 
the  only  person  who  can  sue  in  respect  of  it  is,  as  a  rule,  the  person 
immediately  affected  by  it;  another  who  suffers  by  it  has  usually  no 
redress;  the  damage  to  him  is  too  remote,  and  it  would  be  obviously 
practically  impossible  and  highly  inconvenient  to  give  legal  redress 
to  all  who  suffered  from  such  wrongs.  But  if  the  interference  is 
wrongful  and  is  intended  to  damage  a  third  person,  and  he  is  dam- 
aged in  fact  —  in  other  words,  if  he  is  wrongfully  and  intentionally 
struck  at  through  others,  and  is  thereby  damnified  —  the  whole  aspect 
of  the  case  is  changed ;  the  wrong  done  to  others  readies  him,  his 
rights  are  infringed  although  indirectly,  and  damage  to  him  is  not 
remote  or  unforeseen,  but  is  the  direct  consequence  of  what  has  been 
done.  Our  law,  as  I  understand  it,  is  not  so  defective  as  to  refuse 
him  a  remedy  by  an  action  under  such  circumstances.  The  cases 
collected  in  the  old  books  on  actions  on  the  case,  and  tlie  illustrations 
given  by  the  late  Bowen,  L.  J.,  in  his  admirable  judgment  in  the 
Mogul  Steamship  Company's  Case,  23  Q.  B.  D.  613,  G14,  may  be 


CHAP.    XI.]  PROCURING   REFUSAL   TO    CONTRACT.  377 

referred  to  in  support  of  tlie  foregoing  conclusion,  and  T  do  not  under- 
stand the  decision  in  Allen  v.  Flood,  [1898]  A.  C.  1,  to  be  opposed 
to  it. 

If  the  above  reasoning  is  correct,  Lumley  v.  Gye,  2  E.  &  B.  216,^ 
was  rightly  decided,  as  1  am  of  opinion  it  clearly  was.  Further,  the 
principle  involved  in  it  cannot  be  confined  to  inducements  to  break 
contracts  of  service,  nor  indeed  to  inducements  to  break  any  con- 
tracts. The  principle  which  underlies  the  decision  reaches  all  wrong- 
ful acts  done  intentionally  to  damage  a  particular  individual  and 
actually  damaging  him.  Temperton  v.  Russell,  [1893]  1  Q.  B.  715, 
ought  to  have  been  decided  and  may  be  upheld  on  this  principle. 
That  case  was  much  criticized  in  Allen  v.  Flood,  [1898]  A.  C.  1,  and 
not  without  reason ;  for,  according  to  the  judgment  of  Lord  Esher, 
the  defendants'  liability  depended  on  motive  or  intention  alone, 
whether  anything  wrong  was  done  or  not.  This  went  too  far,  as  was 
pointed  out  in  Allen  v.  Flood,  [1898]  A.  C.  1.  But  in  Temperton  v. 
Russell,  [1893]  1  Q.  B.  715,  there  was  a  wrongful  act,  namely,  con- 
spiracy and  unjustifiable  interference  with  Brentano,  who  dealt  with 
the  plaintiff.  This  wrongful  act  warranted  the  decision,  which  I 
think  was  right. 

2.  I  pass  on  to  consider  what  the  defendants  did.  The  appellant 
and  two  of  the  other  defendants  were  the  officers  of  a  trade  union, 
and  the  jury  have  found  that  the  defendants  wrongfully  and  ma- 
liciously induced  the  customers  of  the  plaintiff  to  refuse  to  deal  with 
him,  and  maliciously  conspired  to  induce  them  not  to  deal  with  him. 
There  were  similar  findings  as  to  inducing  servants  of  the  plaintiff  to 
leave  him.  What  the  defendants  did  was  to  threaten  to  call  out  the 
union  workmen  of  the  plaintiff  and  of  his  customers  if  he  would  not 
discharge  some  non-union  men  in  his  employ.  In  other  words,  in 
order  to  compel  the  plaintiff  to  discharge  some  of  his  men,  the  de- 
fendants threatened  to  put  the  plaintiff  and  his  customers,  and  per- 
sons lawfully  working  for  them,  to  all  the  inconvenience  they  could 
without  using  violence.  The  defendants'  conduct  was  the  more  repre- 
hensible because  the  plaintiff  offered  to  pay  the  fees  necessary  to  en- 
able his  non-union  men  to  become  members  of  the  defendants'  union; 
but  this  would  not  satisfy  the  defendants.  The  facts  of  this  case  are 
entirely  different  from  those  which  this  House  had  to  consider  in 
Allen  V.  Flood,  [1898]  A.  C.  1.  In  the  present  case  there  was  no  dis- 
pute between  the  plaintiff  and  his  men.  None  of  them  wanted  to  leave 
his  employ.  Nor  was  there  any  dispute  between  the  plaintiff's  cus- 
tomers and  their  own  men,  nor  between  the  plaintiff  and  his  cus- 
tomers, nor  between  the  men  they  respectively  employed.  The  de- 
fendants called  no  witnesses,  and  there  was  no  evidence  to  justify 
or  excuse  the  conduct  of  the  defendants.  That  they  acted  as  they  did 
in  furtherance  of  what  they  considered  the  interests  of  union  men 

»  Ante.  p.  346. 


378  QUINX    V.    LEATIIEM.  [CHAP.    XI. 

may  probably  be  fairly  assumed  in  their  favor,  although  they  did  not 
come  forward  and  say  so  themselves;  but  that  is  all  that  can  be 
said  for  them.  No  one  can,  I  think,  say  that  the  verdict  was  not 
amply  warranted  by  the  evidence.  I  have  purposely  said  nothing 
about  the  black  list,  as  the  learned  judge  who  tried  the  case  considered 
that  the  evidence  did  not  connect  the  appellant  with  that  list.  But 
the  black  list  was,  in  my  opinion,  a  very  important  feature  in  that 
case. 

3.  The  remaining  question  is  whether  such  conduct  infringed  the 
plaintilf's  rights  so  as  to  give  him  a  cause  of  action.  In  my  opinion, 
it  plainly  did.  The  defendants  were  doing  a  great  deal  more  than 
exercising  their  own  rights:  they  were  dictating  to  the  plaintiff  and 
his  customers  and  servants  what  they  were  to  do.  The  defendants 
were  violating  their  duty  to  the  plaintiff  and  his  customers  and  serv- 
ants, which  was  to  leave  them  in  the  undisturbed  enjoyment  of  their 
liberty  of  action  as  already  explained.  What  is  the  legal  justification 
or  excuse  for  such  conduct  ?  None  is  alleged,  and  none  can  be  found. 
This  violation  of  duty  by  the  defendants  resulted  in  damage  to  the 
plaintiff  —  not  remote,  but  immediate  and  intended.  The  intention 
to  injure  the  plaintiff  negatives  all  excuses  and  disposes  of  any  ques- 
tion of  remoteness  of  damage.  Your  Lordships  have  to  deal  with  a 
case,  not  of  damnum  absque  injuria,  but  of  damnum  cum  injuria. 

Every  element  necessary  to  give  a  cause  of  action  on  ordinary  prin- 
ciples of  law  is  present  in  this  case.  As  regards  authorities,  they  were 
all  exhaustively  examined  in  the  Mogul  Steamship  Co.  v.  MacGregor, 
[1892]  A.  C.  25,  and  Allen  v.  Flood,  [1898]  A.  C.  1,  and  it  is  un- 
necessary to  dwell  upon  them  again.  I  have  examined  all  those  which 
are  important,  and  I  venture  to  say  that  there  is  not  a  single  decision 
anterior  to  Allen  v.  Flood,  [1898]  A.  C.  1,  in  favor  of  the  appellant. 
His  sheet-anchor  is  Allen  v.  Flood,  [1898]  A.  C.  1,  which  is  far  from 
covering  this  case,  and  which  can  only  be  made  to  cover  it  by  greatly 
extending  its  operation. 

It  was  contended  at  the  bar  that  if  what  was  done  in  this  case  had 
been  done  by  one  person  only,  his  conduct  would  not  have  been  action- 
able, and  that  the  fact  that  what  was  done  was  effected  by  many  act- 
ing in  concert  makes  no  difference.  My  Lords,  one  man  without 
others  behind  him  who  would  obey  his  orders  could  not  have  done 
what  these  defendants  did.  One  man  exercising  the  same  control 
over  others  as  these  defendants  had  could  have  acted  as  they  did,  and, 
if  he  bad  done  so,  I  conceive  that  he  would  liave  committed  a  wrong 
towards  the  plaintiff  for  which  the  plaintiff  could  have  maintained 
an  action.  T  am  aware  that  in  Allen  v.  Flood,  1898  A.  C.  1,  Lord 
Herscbell,  [1898]  A.  C.  at  pp.  128,  139,  expressed  his  opinion  to  be 
that  it  was  immaterial  wlu'tlier  Allen  said  he  would  call  the  men  out 
or  not.  This  may  have  been  so  in  that  particular  case,  as  there  was  evi- 
dence that  Allen  had  no  power  to  call  out  the  men,  and  the  men  had 


CHAP.    XI.]  PROCURING   REFUSAL   TO    CONTRACT.  379 

determined  to  strike  before  Allen  had  anything  to  do  with  the  matter. 
But  if  Lord  Herschell  meant  to  say  that  as  a  matter  of  law  tliere  is 
no  difference  between  giving  information  that  men  will  strike  and 
making  them  strike,  or  threatening  to  make  them  strike,  by  calling 
them  out  when  they  do  not  want  to  strike,  I  am  unable  to  concur  with 
him.  It  is  all  very  well  to  talk  about  peaceal)le  persuasion.  It  may 
be  that  in  Allen  v.  Flood,  [1898]  A.  C.  1,  there  was  nothing  more;  but 
here  there  was  very  nmch  more.  What  may  begin  as  peaceable  per- 
suasion may  easily  become,  and  in  trades  union  disputes  generally 
does  become,  peremptory  ordering,  with  threats  open  or  covert  of 
very  unpleasant  consequences  to  those  who  are  not  persuaded.  Call- 
ing workmen  out  involves  very  serious  consequences  to  such  of  them 
as  do  not  obey.  Black  lists  are  real  instruments  of  coercion,  as  every 
man  whose  name  is  on  one  soon  discovers  to  his  cost.  A  combination 
not  to  work  is  one  thing,  and  is  lawful.  A  combination  to  prevent 
others  from  working  by  annoying  them  if  they  do  is  a  very  different 
thing,  and  is  prima  facie  unlawful.  Again,  not  to  work  oneself  is 
lawful  so  long  as  one  keeps  off  the  poor-rates,  but  to  order  men  not  to 
work  when  they  are  willing  to  work  is  another  thing.  A  threat  to 
call  men  out  given  by  a  trade  union  official  to  an  employer  of  men 
belonging  to  the  union  and  willing  to  work  with  him  is  a  form  of 
coercion,  intimidation,  molestation,  or  annoyance  to  them  and  to  him 
very  difficult  to  resist,  and,  to  say  the  least,  requiring  justification. 
None  was  offered  in  this  case. 

My  Lords,  it  is  said  that  conduct  which  is  not  actionable  on  the 
part  of  one  person  cannot  be  actionable  if  it  is  that  of  several  acting 
in  concert.  This  may  be  so  where  many  do  no  more  than  one  is  sup- 
posed to  do.  But  numbers  may  annoy  and  coerce  where  one  may  not. 
Annoyance  and  coercion  by  many  may  be  so  intolerable  as  to  become 
actionable,  and  produce  a  result  which  one  alone  could  not  produce. 
I  am  aware  of  the  difficulties  which  surround  the  law  of  conspiracy 
both  in  its  criminal  and  civil  aspects;  and  older  views  have  been 
greatly  and,  if  I  may  say  so,  most  beneficially  modified  by  the  dis- 
cussions and  decisions  in  America  and  this  country.  An^ongst  the 
American  cases  I  would  refer  especially  to  Vegelahn  v.  Guntner,  167 
Mass.  92,  where  coercion  by  other  means  than  violence,  or  threats  of 
it,  was  held  unlawful.  In  this  country  it  is  now  settled  by  the  de- 
cision of  this  house  in  the  case  of  the  Mogul  Steamship  Co.,  [1892] 
A.  C.  25 ;  ^  23  Q.  B.  D.  598,  that  no  action  for  a  conspiracy  lies  against 
persons  who  act  in  concert  to  damage  another  and  do  damage  him, 
but  who  at  the  same  time  merely  exercise  their  own  riglits  and  who 
infringe  no  rights  of  other  people.  Allen  v.  Flood.  [1898]  A.  C.  1, 
emphasizes  the  same  doctrine.  The  principle  was  strikingly  illustrated 
in  the  Scottish  Co-operative  Society  v.  Glasgow  Fleshers'  Association, 
35  Sc.  L.  E.  615,  which  was  referred  to  in  the  course  of  the  argument 

1  Ante,  p.  346. 


380  QUI  XX    V.    LEATllEM.  [CHAP.    XI. 

In  this  case  some  butchers  induced  some  salesmen  not  to  sell  meat  to 
the  plaintiffs.  The  means  employed  were  to  threaten  the  salesmen 
that  if  they  continued  to  sell  meat  to  the  plaintiffs  they,  the  butchers, 
would  not  buy  from  the  salesmen.  There  was  nothing  unlawful  in 
this,  and  the  learned  judge  held  that  the  plaintiffs  showed  no  cause 
of  action,  although  the  butchers'  object  was  to  prevent  the  plaintiffs 
from  buying  for  co-operative  societies  in  competition  with  themselves, 
and  the  defendants  were  acting  in  concert. 

The  cardinal  point  of  distinction  between  such  cases  and  the  pres- 
ent is  that  in  them,  although  damage  was  intentionally  inflicted  on 
the  plaintiffs,  no  one's  right  was  infringed  —  no  wrongful  act  was 
committed;  whilst  in  the  present  case  the  coercion  of  the  plaintiff's 
customers  and  servants,  and  of  the  plaintiff  through  them,  was  an 
infringement  of  their  liberty  as  well  as  his,  and  was  wrongful  both 
to  them  and  also  to  him,  as  I  have  already  endeavored  to  show. 

Intentional  damage  which  arises  from  the  mere  exercise  of  the 
rights  of  many  is  not,  I  apprehend,  actionable  by  our  law  as  now 
settled.  To  hold  the  contrary  would  be  unduly  to  restrict  the  liberty 
of  one  set  of  persons  in  order  to  uphold  the  liberty  of  another  set. 
According  to  our  law,  competition,  with  all  its  drawbacks,  not  only 
between  individuals  but  between  associations,  and  between  them  and 
individuals,  is  permissible,  provided  nobody's  rights  are  infringed. 
The  law  is  the  same  for  all  persons,  whatever  their  callings ;  it  applies 
to  masters  as  well  as  to  men;  the  proviso,  however,  is  all-important, 
and  it  also  applies  to  both  and  limits  the  rights  of  those  who  combine 
to  lock-out  as  well  as  the  right  of  those  who  strike.  But  coercion  by 
threats,  open  or  disguised,  not  only  of  bodily  harm  but  of  serious 
annoyance  and  damage,  is  prima  facie,  at  all  events,  a  wrong  inflicted 
on  the  persons  coerced;  and  in  considering  whether  coercion  has  been 
applied  or  not,  numbers  cannot  be  disregarded. 

My  Lords,  the  appellant  relied  on  several  authorities  besides  those 
already  referred  to,  which  I  will  shortly  notice.  No  coercion  of  the 
plaintiff's  employer,  customers,  servants,  or  friends  had  to  be  con- 
sidered in  Kearney  v.  Lloyd,  26  L.  E.  Ir.  268.  This  is  fully  shown  in 
the  various  judgments  now  under  review. 

In  Iluttley  v.  Simmons,  [189<S]  1  Q.  B.  181,  the  plaintiff  was  a  cab- 
driver  in  flic  employ  of  a  cab-owner.  The  defendants  were  four  mem- 
bers of  a  trade  union  who  were  alleged  to  have  maliciously  induced 
the  cab-owner  not  to  employ  the  plaintiff,  and  not  to  let  him  have 
a  cab  to  drive.  The  report  does  not  state  the  means  employed  to  in- 
duce the  cab-owner  to  refuse  to  have  any  dealings  with  tlie  plaintiff. 
The  learned  judge  who  tried  the  case  held  that  as  to  three  of  the 
defendants  the  plaintiff  had  no  case,  and  that  as  to  the  fourth,  against 
"whom  the  jury  found  a  verdict,  no  action  would  lie  because  he  had 
done  nothing  in  itself  wrong,  apart  from  motive,  and  that  the  fact 
that  he  acted  in  concert  with  others  made  no  difference.    It  is  difficult 


CHAP.    XI.]  ?KOCURING   REFUSAL   TO    CONTRACT.  381 

to  draw  any  satisfactory  conclusion  from  this  case,  as  the  most  mate- 
rial facts  are  not  stated. 

I  conclude  this  part  of  the  case  by  saying  that,  in  my  opinion,  the 
direction  given  to  the  jury  by  the  learned  judge  who  tried  tlie  case 
was  correct,  so  far  as  the  liability  of  the  defendants  turns  on  prin- 
ciples of  common  law,  and  that  the  objection  taken  to  it  by  the  counsel 
for  the  appellant  is  untenable.  I  mean  the  objection  that  the  leai-ned 
judge  did  not  distinguish  between  coercion  to  break  contracts  of 
service,  and  coercion  to  break  contracts  of  other  kinds,  and  coercion 
not  to  enter  into  contracts. 

I  pass  now  to  consider  the  effect  of  the  statute  38  &  39  Vict.  c.  86. 
This  Act  clearly  recognizes  the  legality  of  strikes  and  lock-outs  up 
to  a  certain  point.  It  is  plainly  legal  now  for  workmen  to  combine 
not  to  work  except  on  their  own  terms.  On  the  other  hand,  it  is 
clearly  illegal  for  them  or  any  one  else  to  use  force  or  threats  of  vio- 
lence to  prevent  other  people  from  working  on  any  terms  which  they 
think  proper.  But  there  are  many  ways  short  of  violence,  or  the 
threat  of  it,  of  compelling  persons  to  act  in  a  way  which  they  do  not 
like.  There  are  annoyances  of  all  sorts  and  degrees:  picketing  is  a 
distinct  annoyance  and  if  damage  results  is  an  actionable  nuisance  at 
common  law,  but  if  confined  merely  to  obtaining  or  communicating 
information  it  is  rendered  lawful  by  the  Act  (s.  7).  Is  a  combination 
to  annoy  a  person's  customers,  so  as  to  compel  them  to  leave  him  un- 
less he  obeys  the  combination,  permitted  by  the  Act  or  not?  It  is 
not  forbidden  by  s.  7 ;  is  it  permitted  by  s.  3  ?  I  cannot  think  that 
it  is.  The  Court  of  Appeal  (of  which  I  was  a  member)  so  decided 
in  Lyons  v.  Wilkins,  [1896]  1  Ch.  811,  in  the  case  of  Schoenthal, 
which  arose  there,  and  is  referred  to  in  the  judgment  of  Walker,  L.  J., 
at  p.  99  of  the  printed  judgments  in  this  case.  This  particular  point 
had  not  to  be  reconsidered  when  Lyons  v.  Wilkins,  [1896]  1  Ch.  811, 
came  before  the  Court  of  Appeal  after  the  decision  in  Allen  v.  Flood. 
See  [1899],  1  Ch.  255.  But  Byrne,  J.,  modified  the  injunction 
granted  on  the  first  occasion,  see  [1899]  1  Ch.  at  pp.  258,  259,  by 
confining  it  to  watching  and  besetting.  He  might  safely  have  gone 
further  and  have  restrained  the  use  of  other  unlawful  means;  but 
the  strike  was  then  over,  and  his  modification  was  not  objected  to,  and 
cannot  be  regarded  as  an  authority  in  favor  of  the  appellant's  con- 
tention. 

It  must  be  conceded  tliat  if  what  the  defendant  here  did  had  been 
done  by  one  person  it  would  not  have  been  punishable  as  a  crime.  I 
cannot  myself  see  that  there  was  in  this  case  any  trade  dispute  between 
employers  and  workmen  within  the  meaning  of  s.  3.  I  am  not  at 
present  prepared  to  say  that  the  officers  of  a  trade  union  who  create 
strife  by  calling  out  members  of  the  union  working  for  an  emploj'er 
with  whom  none  of  them  have  any  dispute  can  invoke  the  benefit  of 
this  section  even  on  an  indictment  for  a  conspiracy. 


382  QUINN   V.    LEATHEM.  [CHAP.   XI. 

But  assuming  that  there  was  a  trade  dispute  within  the  meaning 
of  s.  3,  and  that  an  indictment  for  conspiracy  could  not  be  sustained 
in  a  case  like  this,  the  difference  between  an  indictment  for  a  con- 
spiracy and  an  action  for  damages  occasioned  by  a  conspiracy  is  very 
marked  and  is  well  known.  An  illegal  agreement,  whether  carried 
out  or  not,  is  the  essential  element  in  a  criminal  case;  the  damage 
done  by  several  persons  acting  in  concert,  and  not  the  criminal  con- 
spiracy, is  the  important  element  in  the  action  for  damages,  see  1  Wm. 
Saund.  229  b.  230,  and  Barber  v.  Lesiter,  7  C.  B.  (N.  S.)  175.  In  my 
opinion,  it  is  quite  clear  that  s.  3  has  no  application  to  civil  actions: 
it  is  confined  entirely  to  criminal  proceedings.  Nor  can  I  agree  with 
those  who  say  that  the  civil  liability  depends  on  the  criminality  and 
that  if  such  conduct  as  is  complained  of  has  ceased  to  be  criminal  it 
has  therefore  ceased  to  be  actionable.  On  this  point  I  will  content 
myself  by  saying  that  I  agree  with  Andrews,  J.,  and  those  who  con- 
curred with  him.  It  does  not  follow,  and  it  is  not  true,  that  annoy- 
ances which  are  not  indictable  are  not  actionable.  The  law  relating 
to  nuisances,  to  say  nothing  of  the  law  relating  to  combinations,  shows 
that  many  annoyances  are  actionable  which  are  not  indictable,  and  the 
principles  of  justice  on  which  this  is  held  to  be  so  appear  to  me  to 
apply  to  such  cases  as  these. 

My  Lords,  I  will  detain  your  Lordships  no  longer.  Allen  v.  Flood, 
[1898]  A.  C.  1,  is  in  many  respects  a  very  valuable  decision,  but  it 
may  be  easily  misunderstood  and  carried  too  far. 

Your  Lordships  are  asked  to  extend  it  and  to  destroy  that  individual 
liberty  which  our  laws  so  anxiously  guard.  The  appellant  seeks  by 
means  of  Allen  v.  Flood,  [1898]  A.  C.  1,  and  by  logical  reasoning 
based  upon  some  passages  in  the  judgments  given  by  the  noble  Lords 
who  decided  it,  to  drive  your  Lordships  to  hold  that  boycotting  by 
trades  unions  in  one  of  its  most  objectionable  forms  is  lawful,  and 
gives  no  cause  of  action  to  its  victims  although  they  may  be  pecuni- 
arily ruined  thereby. 

My  Lords,  so  to  hold  would,  in  my  opinion,  be  contrary  to  well- 
settled  principles  of  English  law,  and  would  be  to  do  what  is  not 
yet  authorized  by  any  statute  or  legal  decision. 

In  my  opinion  this  appeal  ought  to  be  dismissed  with  costs. 

Order  apvealed  from  affirmed  avd  appeal  dismissed  vnth  costs. 
[The  Earl  of  Halsbury,  L.  C,  and  Lord  Shand  delivered  concurring 
opinions.] 


CHAP.   XI.]  PEOCUKING   REFUSAL   TO    CONTEACI.  383 

PICKETT    V.    WALSH. 
Supreme  Court  of  Massachusetts,  October,  1906.     192  Mass.  572. 

The  case  is  stated  in  the  opinion. 

LoRiNG,  J.  This  suit  in  equity  comes  before  us  on  an  appeal  from 
a  final  decree,  wlicre  the  evidence  was  taken  by  a  commissioner  and 
where  no  findings  of  fact  were  made  in  the  lower  court. 

The  bill  was  brought  to  enjoin  the  defendants  from  combining  and 
conspiring  to  interfere  with  the  plaintiffs  in  pursuing  their  trade  of 
brick  and  stone  pointers.  The  purpose  of  the  bill  as  stated  in  the 
prayers  for  relief  was  to  enjoin  the  defendants  (1)  from  combining 
and  conspiring  in  any  way  to  compel  L.  P.  Soule  and  Son  Company, 
or  any  other  person,  firm  or  corporation  by  force,  threats,  intimida- 
tion or  coercion,  to  discharge  the  complainants  in  the  bill  of  complaint, 
to  wit:  Eobert  H.  Pickett,  Charles  A.  Pickett,  Thomas  J.  Lally  and 
Walter  H.  Wilkins,  or  to  refrain  from  further  employing  them  in 
and  about  their  trade  and  occupation;  (2)  from  combining  and  con- 
spiring to  compel  the  owners  of  the  so-called  Ford  Building  on  Ash- 
burton  Place  in  the  city  of  Boston  to  break  or  decline  to  carry  out 
their  said  contract  with  the  complainant  Eobert  H.  Pickett;  and 
(3)  from  combining  and  conspiring  to  interfere  with  the  said  com- 
plainants, or  any  of  them,  in  the  practice  of  their  trade  and  occupa- 
tion, or  to  prevent  them  from  obtaining  further  employment  thereat. 

The  defendants  were  the  officers  of  two  unincorporated  bricklayers' 
unions,  to  wit.  Unions  No.  3  and  No.  27,  and  of  one  stone  masons' 
union,  to  wit.  Union  No.  9.  The  plaintiffs  also  undertook  to  make 
each  one  of  the  three  unincorporated  unions  parties  defendant.  The 
Bricklayers'  Union  No.  27  seems  from  the  evidence  not  to  have  been 
concerned  in  the  matters  in  dispute.  For  this  reason  we  shall  not 
refer  to  it  again  except  to  show  later  on  that  there  is  no  evidence  that 
it  took  part  in  the  matters  here  in  question.  The  individual  defend- 
ants were  one  Driscoll,  the  walking  delegate  of  the  Bricklayers'  Union 
No.  3,  one  Walsh,  the  walking  delegate  of  the  Stone  IMasons'  Union 
No.  9,  and  other  persons  who  were  officers  of  those  two  unions. 

It  appears  from  the  evidence  that  the  trade  of  brick  and  stone 
pointing  is  a  trade  which,  in  the  neighborhood  of  the  city  of  Boston 
at  any  rate,  has  been  carried  on  to  some  extent  as  a  separate  trade  for 
nearly  if  not  quite  one  hundred  years.  It  further  appears  that  there 
are  now  some  forty-five  men  engaged  in  that  trade  in  the  vicinity  of 
that  city. 

The  trade  of  a  brick  or  a  stone  pointer  consists  in  going  over  a 
building  (generally  when  it  is  first  erected)  to  clean  it  and  to  put 
a   finish  on  the   mortar  of  the  joints.     Apparently   in  the   city   of 


384  PICKETT    V.    WALSH.  [CHAP.    XI. 

Worcester,  and  to  some  extent  in  the  city  of  Boston,  this  work  of 
pointing  is  done  by  bricklayers  and  stone  masons. 

The  dispute  which  gave  rise  to  the  suit  now  before  us  had  its 
origin  in  a  set  of  rules  adopted  in  January,  1905,  by  the  Bricklayers' 
and  Masons'  International  Union  of  America,  to  which  the  two 
unions  here  in  question  were  subordinate.  This  set  of  rules  contained 
a  provision  that  bricklaying  masonry  should  consist  (inter  alia)  of 
"  all  pointing  and  cleaning  brick  walls,"  and  that  stone  masonry 
should  consist  (inter  alia)  of  the  "cleaning  and  pointing  of  stone 
work."  The  practical  working  of  the  principles  of  brick  and  stone 
masonry  as  defined  in  these  rules  was  left  to  the  subordinate  unions. 

By  the  Constitution,  By-Laws  and  Rules  of  Order  of  the  Brick- 
layers' Union  No.  3,  it  is  provided  that  members  shall  not  accept 
employment  "  where  a  difficulty  exists  in  consequence  of  questions 
involving  the  rules  which  govern  the  Union,"  and  that  any  member 
violating  a  law  of  the  union  shall  on  conviction  "  be  reprimanded, 
suspended  or  fined  at  the  discretion  of  the  Union."  No  similar  pro- 
vision appears  in  the  extract  from  the  Constitution  of  the  Stone 
Masons'  Union  which  was  in  evidence,  but  it  is  not  a  violent  assump- 
tion from  the  action  of  the  masons  and  from  the  testimony  of  Walsh, 
the  walking  delegate  of  the  Stone  Masons'  Union,  that  the  members  of 
the  ^lasons'  Union  stood  on  the  same  footing  as  the  members  of  the 
Bricklayers'  Union  in  this  respect. 

In  other  words,  the  make-up  of  the  two  unions  was  such  that  any 
member  of  a  subordinate  union  (which  had  adopted  a  working  rule 
containing  in  substance  the  provisions  of  the  working  rules  of  the 
International  Union  as  to  cleaning  and  pointing  buildings)  who  con- 
tinued to  work  on  a  job  on  which  a  pointer  was  at  work  was  liable  to 
be  reprimanded,  fined  or  suspended. 

This  brings  us  to  the  action  taken  by  the  unions  here  in  question. 

There  was  an  executive  committee  of  the  two  unions.  On  July  28, 
1905,  this  executive  committee  voted  "that  beginning  September  18, 
1905,  no  member  of  the  Bricklayers'  and  Masons'  unions  of  Boston 
and  vicinity,  will  work  on  any  building  where  the  contractor  will  not 
agree  to  have  the  pointing  done  by  bricklayers  or  masons." 

Tbis  action  of  the  executive  committee  was  formally  adopted  by  the 
Bricklayers'  Union  No.  3,  and  seems  to  have  been  informally  adopted 
by  the  Stone  Masons'  Union  No.  9.  In  pursuance  thereof  the  follow- 
ing circular  letter  was  issued:  "  The  Bricklayers'  and  Masons'  Unions 
of  Boston  and  vicinity  have  voted  tliat  no  bricklayer  or  mason  will 
work  for  any  firm  or  contractor  who  will  not  employ  bricklayers  or 
masons  to  do  the  pointing  of  brick,  terra  cotta  and  stone  masonry. 
This  action  to  go  into  efl'ect  September  18,  1905." 

In  Septcnibf-r,  1905,  L.  D.  Willcutt  and  Son  as  general  contractors 
were  erecting  (among  other  buildings)  a  stone  building  on  the  corner 
of  Massachusetts  Avenue  and   Bovlslon    Street   in    I'oHton.     On   t!ie 


CHAP.    XI.]  PROCURING   REFUSAL   TO    CONTRACT.  385 

eigliteenth  day  of  that  month,  Mr.  L.  D.  \Yillcutt  of  that  firm  was 
notified  that  if  he  did  not  discharge  the  pointers  who  were  working 
for  his  firm  in  pointing  that  building  all  the  masons  and  bricklayers 
working  for  his  firm  on  other  buildings  in  Boston  (all  of  whom  were 
union  men)  would  strike.  Thereupon  he  suspended  the  work  which 
was  being  done  by  the  pointers  on  the  building  on  the  corner  of  Massa- 
chusetts Avenue  and  Boylston  Street.  This  evidence  was  admitted 
to  show  that  there  was  a  general  scheme  that  where  pointing  was 
given  to  any  one  beside  union  bricklayers  and  stone  masons  there 
would  be  a  strike. 

On  November  13,  1905,  the  defendant  Walsh,  the  walking  delegate 
of  the  Stone  Masons'  Union  No.  9,  and  the  defendant  Driscoll,  the 
walking  delegate  of  the  Bricklayers'  Union  No.  3,  came  to  the  Ford 
Building,  for  which  the  corporation  of  L.  P.  Soule  and  Son  Company 
were  the  general  contractors,  and  found  that  the  cleaning  and  the 
pointing  of  that  building  were  being  done  under  a  contract  between 
the  owners  of  the  building  and  Eobert  H.  Pickett,  one  of  the  plain- 
tiffs here.  They  then  went  to  a  brick  building  which  was  being  erected 
by  the  L.  P.  Soule  and  Son  Company  as  contractors,  a  cold  storage 
warehouse  on  Eastern  Avenue,  and  there  Driscoll  notified  the  men 
that  the  pointing  at  the  Ford  Building  was  being  done  by  pointer?. 
In  consequence  all  the  bricklayers  employed  by  the  L.  P.  Soule  and 
Son  Company  on  the  cold  storage  building,  fifty  in  all,  being  union 
men,  struck  work  on  that  or  the  next  day.  The  next  day,  Novem- 
ber 14,  Walsh  went  to  a  stone  building  which  was  being  erected  by 
the  same  corporation  for  the  International  Trust  Company  on  the 
corner  of  Arch  Street  and  Devonshire  Street,  anl  told  the  workmen 
there  of  the  pointing  on  the  Ford  Building;  whereupon  all  the  stone 
masons  working  there,  five  or  six  in  all,  being  union  men,  struck  work. 

This  bill  was  filed  in  the  Superior  Court  on  November  21,  1905. 
It  seems  to  have  come  on  for  hearing  on  December  5,  1905.  As  we 
have  said,  the  evidence  was  taken  by  a  commissioner,  a  final  decree 
in  favor  of  the  plaintiffs  on  all  three  grounds  was  made  on  Decem- 
ber 11,  without  any  special  findings  of  fact,  and  the  case  is  here  on 
appeal  from  that  decree. 

It  appeared  from  the  testimony  of  Parker  F.  Soule  (an  officer  of 
the  L.  P.  Soule  and  Son  Company)  that  it  was  cheaper  to  make  a 
contract  with  pointers  for  the  work  of  pointing  and  cleaning  than  to 
employ  stone  masons  and  bricklayers  to  do  that  work.  It  appeared 
from  other  evidence  that  the  wages  of  a  bricklayer  or  stone  mason 
were  fifty-five  cents  an  hour,  while  pointers  are  paid  three  dollars  for 
a  day  of  eight  hours,  or  thirty-seven  and  one-half  cents  an  hour.  It 
further  appeared  from  Mr.  Soule's  testimony  that  he  preferred  to 
give  the  work  to  the  pointers  because  in  cleaning  a  building  acid  has 
to  be  used,  and,  if  the  acid  is  used  to  excess,  stains  are  caused  which 
in  some  instances  it  is  impossible  to  "  get  out ; "  and  that  he  did  not 


386  PICKETT    V.    WALSH.  [CHAP.    XI. 

think  that  the  bricklayers  and  stone  masons  were  competent  to  use 
these  acids.  He  also  preferred  to  give  the  work  to  the  pointers  be- 
cause the  work  which  is  done  by  the  pointers  usually  is  done  by  con- 
tract, in  which  case  the  general  contractor  who  employs  the  pointers 
is  relieved  from  responsibility  on  account  of  accidents  which  may 
occur  because  of  the  fact  that  the  work  is  done  on  a  swinging  stage, 
at  times  at  great  heights.  Again  it  appeared  from  the  evidence  that 
L.  P.  Soule  and  Son  Company  were  not  the  only  contractors  who 
thought  that  they  got  better  work  at  a  smaller  cost  and  with  less  lia- 
bility by  making  a  contract  with  stone  pointers  for  the  doing  of  this 
work  than  by  employing  stone  masons  and  bricklayers  to  do  it. 

All  this  was  explained  to  the  walking  delegate  of  the  Bricklayers' 
Union  here  in  question  at  an  interview  between  Mr.  Soule  and  the 
walking  delegate  of  that  union  held  within  two  days  of  the  strike. 
It  also  appeared  that  at  that  interview  the  delegate  told  Mr.  Soule 
that,  while  it  had  been  against  the  rules  of  the  union  that  any  mem- 
ber should  take  piece  work,  the  taking  of  piece  work  recently  had 
been  allowed ;  whereupon  Mr.  Soule  told  him  that  "  if  he  had  any 
members  of  his  union  who  were  reliable  men,  whom  we  could  have 
confidence  enough  in  to  let  a  contract  to,  who  would  give  prices  as 
low,  ...  he  would  have  no  trouble  in  getting  all  the  stone  pointing 
there  was  going."  No  offer  to  make  a  contract  on  these  terms  was 
made,  and  on  the  evidence  it  must  be  assumed  that  there  was  nothing 
in  this  statement  of  the  defendant  Walsh. 

It  further  appeared  from  the  evidence  that  the  brick  and  stone 
pointers  of  Boston  applied  to  the  Building  Trades  Council  for  a  char- 
ter. It  is  stated  in  the  record  of  the  Brick  Masons'  Union  No.  3, 
that  "the  said  pointers  about  a  year  ago  applied  to  the  A.  F.  of  L. 
for  a  charter,  which  was  denied  them,  the  American  Federation  of 
Labor  taking  the  stand  that  brick  and  stone  pointing  was  a  part  of  the 
bricklayers'  and  masons'  trade."  On  September  11,  1905,  the  Brick 
Masons'  Union  No.  3  voted  to  "  file  a  protest  to  the  B.  T.  C.  against 
their  granting  a  charter  to  the  brick  and  stone  pointers  of  Boston," 
and  on  September  18  it  was  voted  "  that  this  Committee  [sic]  send 
communication  to  B.  T.  C.  requesting  that  body  not  to  grant  a  charter 
to  the  so-called  brick  and  stone  pointers."  It  was  admitted  that  the 
men  engaged  in  the  business  of  brick  and  stone  pointers  were  not 
qualified  for  the  business  of  bricklayers  and  stone  masons. 

There  was  evidence  that  at  the  interview  between  Driscoll  and  Mr. 
Willcutt,  Mr.  Willcutt  told  Driscoll  that  he  did  not  believe  that,  when 
there  were  twelve  hundred  men  in  the  union  and  thirty  pointers  out- 
side, all  this  fuss  was  being  made  to  get  the  pointers'  work  for  the 
union  men;  that  he  thought  it  was  "simply  a  question  of  dictation 
to  us;"  and  on  Mr.  Willcutt's  asking  him  (Driscoll)  "Do  you  really 
want  it  or  do  you  want  to  drive  the  men  out  of  business?"  Driscoll 
smiled  and  said:   "That  is  a  charitable  way  of  looking  at  it." 


CHAP.    XI.]  PROCURING   REFUSAL   TO    CONTRACT.  387 

There  seem  to  be  three  causes  of  action  uplield  by  the  decree. 

In  the  first  place,  Eobert  H.  Pickett,  one  of  the  plaintiffs,  had  a 
contract  with  the  owners  of  the  Ford  Building  and  was  at  work  under 
it  when  the  defendants  struck.  lie  seeks  protection  from  a  strike  on 
L.  P.  Soule  and  Son  Company  to  force  the  owners  of  the  Ford  Build- 
ing to  give  this  work  to  the  unions  and  to  take  it  away  from  him.  Ex- 
cept for  the  fact  of  this  contract,  in  which  the  plaintiff  Eobert  H. 
Pickett  alone  was  concerned,  the  first  and  second  causes  of  action  are 
alike. 

The  second  cause  of  action  consists  in  the  effort  of  all  the  plaintiffs 
to  be  protected  from  being  discharged  or  not  employed  by  the  L.  P. 
Soule  and  Son  Company  because  the  defendants  struck  work  for  that 
corporation  so  long  as  that  corporation  worked  on  a  building  on  which 
Eobert  H.  Pickett  was  employed  by  the  owners  of  that  building. 

Finally,  the  plaintiffs  sought  to  be  protected  against  a  strike  by  the 
defendants  in  order  to  get  the  work  of  pointing  for  the  members  of 
their  unions. 

No  objection  has  been  taken  to  the  bill  on  the  ground  of  multifari- 
ousness.    We  therefore  shall  consider  all  three  causes  of  action. 

We  will  consider  first  the  last  of  the  three  causes  of  action. 

The  question,  so  far  as  this  the  third  cause  of  action  goes  (apart 
from  a  question  of  fact  which  we  will  deal  with  later  on),  is  whether 
the  defendant  unions  have  a  right  to  strike  for  the  purpose  for  which 
they  struck;  or,  to  put  it  more  accurately  and  more  narrowly,  it  is 
this:  Is  a  union  of  bricklayers  and  stone  masons  justified  in  striking 
to  force  a  contractor  to  employ  them  by  the  day  to  do  cleaning  and 
pointing  at  higher  wages  than  pointers  are  paid,  where  the  contractors 
wish  to  make  contracts  with  the  pointers  for  such  work  to  be  done 
by  the  piece  because  they  think  they  get  better  work  at  less  cost  with 
no  liability  for  accidents,  and  where  the  pointers  wish  to  make  con- 
tracts for  that  work  with  the  contractors  on  terms  satisfactory  to 
them? 

In  other  words,  we  have  to  deal  with  one  of  the  great  and  pressing 
questions  growing  out  of  the  existence  of  the  powerful  combinations, 
sometimes  of  capital  and  sometimes  of  labor,  which  have  been  insti- 
tuted in  recent  years  where  their  actions  come  into  conflict  with  the 
interests  of  individuals.  The  combination  in  the  case  at  bar  is  a 
combination  of  workmen,  and  the  conflict  is  between  a  labor  union 
on  the  one  hand  and  several  unorganized  laborers  on  the  other  hand. 

It  is  only  in  recent  years  that  these  great  and  powerful  combina- 
tions have  made  their  appearance,  and  the  limits  to  which  they  may 
go  in  enforcing  their  demands  are  far  from  being  settled. 

It  is  settled  however  that  laborers  liaA'e  a  right  to  organize  as  labor 
unions  to  promote  their  welfare. 

Further,  there  is  no  question  of  the  general  right  of  a  labor  union 
to  strike. 


388  PICKETT    V.    WALSH.  [CHAP.    XI. 

On  the  other  hand  it  is  settled  that  some  strikes  by  hiljor  unions 
are  illegah  It  was  held  in  Carew  v.  Eutherford,  106  Mass.  1,  that  a 
strike  by  the  members  of  a  labor  union  was  illegal  when  set  on  foot 
to  force  their  employer  to  pay  a  fine  imposed  upon  him  by  the  union 
of  which  he  was  not  a  member,  for  not  giving  the  union  all  his  work. 
To  the  same  effect  see  March  v.  Bricklayers'  &  Plasterers'  Union  No. 
1,  79  Conn.  7.  Again,  it  was  held  in  Plant  v.  Woods,  176  Mass.  492, 
that  a  labor  union  could  not  force  other  workmen  to  join  it  by  refus- 
ing to  work  if  workmen  were  employed  who  were  not  memljers  of  that 
union.  To  the  same  effect  see  Erdman  v.  Mitchell,  207  Penn.  St.  79; 
O'Brien  v.  People,  216  111.  35-1;  Loewe  v.  California  State  Federation 
of  Labor,  139  Fed.  Eep.  71.  And  see  in  this  connection  Giblan  v. 
National  Amalgamated  Labourers'  Union,  [1903]  2  K.  B.  600. 

When  and  for  what  end  this  power  of  coercion  and  compulsion 
commonly  known  as  a  strike  may  be  legally  used  is  the  question  which 
this  case  calls  upon  us  to  decide.  In  the  present  state  of  the  author- 
ities it  becomes  necessary  to  consider  the  general  principles  govern- 
ing labor  unions  and  strikes  by  labor  unions. 

The  right  of  laborers  to  organize  unions  and  to  utilize  such  organ- 
izations by  instituting  a  strike  is  an  exercise  of  the  common  law 
right  of  every  citizen  to  pursue  his  calling,  whether  of  labor  or  busi- 
ness, as  he  in  his  judgment  thinks  fit.  It  is  pointed  out  in  Carew  v. 
Eutherford,  106  Mass.  1,  14,  that  in  the  earlier  days  of  the  colony 
the  government  undertook  to  control  the  conduct  of  labor  and  busi- 
ness to  some  extent,  but  that  later  this  policy  of  regulation  was  aban- 
doned and  all  citizens  were  left  free  to  pursue  their  calling,  whether 
of  labor  or  business,  as  seemed  to  them  best.  This  common  law  right 
was  raised  to  the  dignity  of  a  constitutional  right  by  being  incorpo- 
rated in  the  Constitution  of  the  Commonwealth.  So  far  as  the  ques- 
tion now  before  us  goes  it  is  of  no  consequence  whether  the  right  to 
pursue  one's  calling  (whether  it  be  of  labor  or  of  business)  is  a  com- 
mon law  right  or  a  constitutional  right,  since  the  violation  of  it  here 
complained  of  is  on  tlie  part  of  individuals  and  not  on  the  part  of 
the  Legislature.  What  is  of  consequence  here  is  that  such  a  right 
exists.  In  article  1  of  the  Declaration  of  Eights  it  is  declared  that 
"  All  men  are  born  free  and  equal,  and  have  certain  natural,  essential, 
and  unalienable  rights;  among  which  may  be  reckoned  the  right 
of  .  .  .  acquiring,  possessing,  and  protecting  property;  in  fine,  that 
of  seeking  and  ol)taining  tlieir  safety  and  happiness."  It  is  in  the 
exercise  of  this  right  that  laborers  can  legally  combine  together  in 
what  are  called  labor  unions. 

This  right  of  one  or  more  citizens  to  pursue  his  or  their  calling  as 
he  or  they  see  fit  is  limited  by  the  existence  of  the  same  right  in  all 
other  filizons.  The  right  and  the  result  are  accurately  stated  by  Sir 
William  Erie  in  his  book  on  Trade  Unions  in  these  words:  "Every 
person  has  a  right  under  the  law,  as  between  him  and  his  fellow  sub- 


CHAP.    XI.]  PROCURING   REFUSAL   TO    CONTRACT.  389 

jects,  to  full  freedom  in  disposing  of  his  own  labor  or  his  own  capital 
according  to  his  own  will.  It  follows  that  every  other  person  is  sub- 
ject to  the  correlative  duty  arising  therefrom,  and  is  prohibited  from 
any  obstruction  to  the  fullest  exercise  of  this  right  which  can  be  made 
compatible  with  the  exercise  of  similar  rights  by  others : "  cited  by 
this  court  in  Plant  v.  Woods,  176  Mass.  492,  498. 

We  now  have  arrived  at  the  point  where  a  labor  union,  being  an 
organization  brought  about  by  the  exercise  on  the  part  of  its  mem- 
bers of  the  right  of  every  citizen  to  pursue  his  calling  as  he  thinks 
best,  is  limited  in  what  it  can  do  by  the  existence  of  the  same  right  in 
each  and  every  other  citizen  to  pursue  his  and  their  calling  as  he  or 
they  think  best. 

In  addition  to  the  limitation  thus  put  on  labor  unions  there  is  a 
fact  which  puts  a  further  limitation  on  what  acts  a  labor  union  can 
legally  do.  That  is  the  increase  of  power  which  a  combination  of 
citizens  has  over  the  individual  citizen.  Take  for  example  the  power 
of  a  labor  union  to  compel  by  a  strike  compliance  with  its  demands. 
Speaking  generally  a  strike  to  be  successful  means  not  only  coercion 
and  compulsion  but  coercion  and  compulsion  which,  for  practical  pur- 
poses, are  irresistible.  A  successful  strike  by  laborers  means,  in  many 
if  not  in  most  cases,  that  for  practical  purposes  the  strikers  have 
such  a  control  of  the  labor  which  the  employer  must  have  that  he 
has  to  yield  to  their  demands.  A  single  individual  may  well  be  left 
to  take  his  chances  in  a  struggle  with  another  individual.  But  in  a 
struggle  with  a  number  of  persons  combined  together  to  fight  an 
individual  the  individual's  chance  is  small,  if  it  exists  at  all.  It  is 
plain  that  a  strike  by  a  combination  of  persons  has  a  power  of  coer- 
cion which  an  individual  does  not  have. 

The  result  of  this  greater  power  of  coercion  on  the  part  of  a  com- 
bination of  individuals  is  that  what  is  lawful  for  an  individual  is  not 
the  test  of  what  is  lawful  for  a  combination  of  individuals;  or  to 
state  it  in  another  way,  there  are  things  which  it  is  lawful  for  an  in- 
dividual to  do  which  it  is  not  lawful  for  a  combination  of  individuals 
to  do.  Take  for  example  the  example  put  in  Allen  v.  Flood,  [1898] 
A.  C.  1,  165,  of  a  butler  refusing  to  renew  a  contract  of  service  be- 
cause the  cook  was  personally  distasteful  to  him,  whereupon,  in  order 
to  secure  the  services  of  the  butler,  the  master  refrains  from  re- 
engaging the  cook  whose  term  of  service  also  had  expired.  We  have  no 
doubt  that  it  is  within  the  legal  rights  of  a  single  person  to  refuse  to 
work  with  another  for  the  reason  that  the  other  person  is  distasteful 
to  him,  or  for  any  other  reason  however  arbitrary.  But  it  is  estab- 
lished in  this  Commonwealth  that  it  is  not  legal  (even  where  he  wishes 
to  do  so)  for  an  employer  to  agree  with  a  union  to  discharge  a  non- 
union workman  for  an  arbitrary  cause  at  the  request  of  the  union. 
Berry  v.  Donovan,  188  Mass.  353.  A  fortiori  the  members  of  a  labor 
union  cannot  by  a  strike  refuse  to  work  with  another  workman  for 


390  PICKETT    V.    WALSH.  [CHAP.    XI. 

an  arbitrary  cause.  For  the  general  proposition  that  what  is  lawful 
for  an  individual  is  not  necessarily  lawful  for  a  combination  of 
individuals  see  Quinn  v.  Leathern,  [1901]  A.  C.  495,  511  ;i  Mogul 
Steamship  Co.  v.  McGregor,  23  Q.  B.  D.  598,  616;  S.  C.  on  appeal, 
[1892]  A.  C.  25,  45;  2  Gregory  v.  Brunswick,  6  M.  &  G.  205;  S.  C.  on 
appeal,  3  C.  B.  481.  It  is  in  effect  concluded  by  Plant  v.  Woods,  176 
Mass.  492. 

These  being  the  general  principles,  we  are  brought  to  the  question 
of  the  legality  of  the  strike  in  the  case  at  bar,  namely,  a  strike  of 
bricklayers  and  masons  to  get  the  work  of  pointing,  or,  to  put  it  more 
accurately,  a  combination  by  the  defendants,  who  are  bricklayers  and 
masons,  to  refuse  to  lay  bricks  and  stone  where  the  pointing  of  them 
is  given  to  others.  The  defendants  in  effect  say  we  want  the  work  of 
pointing  the  bricks  and  stone  laid  by  us,  and  you  must  give  us  all 
or  none  of  the  work. 

The  case  is  one  of  competition  between  the  defendant  unions  and 
the  individual  plaintiffs  for  the  work  of  pointing.  The  work  of  point- 
ing for  which  these  two  sets  of  workmen  are  competing  is  work  which 
the  contractors  are  obliged  to  have.  One  peculiarity  of  the  case  there- 
fore is  that  the  fight  here  is  necessarily  a  triangular  one.  It  neces- 
sarily involves  the  two  sets  of  competing  workmen  and  the  contractor, 
and  is  not  confined  to  the  two  parties  to  the  contract,  as  is  the  case 
where  workmen  strike  to  get  better  wages  from  their  employer  or 
other  conditions  which  are  better  for  them.  In  this  respect  the  case 
is  like  Mogul  Steamship  Co.  v.  McGregor,  23  Q.  B.  D.  598 ;  S.  C.  on 
appeal,  [1892],  A.  C.  25. 

The  right  which  the  defendant  unions  claim  to  exercise  in  carrying 
their  point  in  the  course  of  this  competition  is  a  trade  advantage, 
namely,  that  they  have  labor  which  the  contractors  want,  or,  if  you 
please,  cannot  get  elsewhere;  and  they  insist  upon  using  this  trade 
advantage  to  get  additional  work,  namely,  the  work  of  pointing  the 
bricks  and  stone  which  they  lay.  It  is  somewhat  like  the  advantage 
which  the  owner  of  back  land  has  when  he  has  bought  the  front  lot. 
He  is  not  bound  to  sell  them  separately.  To  be  sure  the  right  of  an 
individual  owner  to  sell  both  or  none  is  not  decisive  of  the  right  of  a 
labor  union  to.  combine  to  refuse  to  lay  bricks  or  stone  unless  they  are 
given  the  job  of  pointing  the  bricks  laid  by  them.  There  are  things 
which  an  individual  can  do  which  a  combination  of  individuals  cannot 
do.  But  having  regard  to  the  right  on  which  the  defendants'  or- 
ganization as  a  labor  union  rests,  the  correlative  duty  owed  by  it  to 
others,  and  the  limitation  of  the  defendants'  rights  coming  from  the 
increased  power  of  organization,  we  arc  of  opinion  that  it  was  within 
the  rights  of  these  unions  to  compete  for  the  work  of  doing  the  point- 
ing and,  in  the  exercise  of  tlieir  right  of  competition,  to  refuse  to  lay 
brifks  nnd  set  stone  unless  they  were  given  the  work  of  pointing 

»  Ante,  p.  .'JC'J.  »  Ante,  p.  34G. 


CHAP.  .XI.]  PROCURING   REFUSAL   TO    CONTRACT.  391 

them  when  laid.  See  in  this  connection  Plant  v.  Woods,  176  Mass. 
492,  503;   Berry  v.  Donovan,  188  Mass.  353,  357. 

The  result  to  which  that  conclusion  brings  us  in  the  case  at  bar 
ought  not  to  be  passed  by  without  consideration. 

The  result  is  harsh  on  the  contractors,  who  prefer  to  give  the 
work  to  the  pointers  because  (1)  the  pointers  do  it  by  contract  (in 
which  case  the  contractors  escape  the  liability  incident  to  the  relation 
of  employer  and  employee)  ;  because  (2)  the  contractors  think  that 
the  pointers  do  the  work  better,  and  if  not  well  done  the  build- 
ings may  be  permanently  injured  by  acid;  and  finally  (3)  because 
they  get  from  the  pointers  better  work  with  less  liability  at  a  smaller 
cost.  Again,  so  far  as  the  pointers  (who  cannot  lay  brick  or  stone) 
are  concerned,  the  result  is  disastrous.  But  all  that  the  labor  unions 
have  done  is  to  say  you  must  employ  us  for  all  the  work  or  none  of 
it.  They  have  not  said  that  if  you  employ  the  pointers  you  must  pay 
US  a  fine,  as  they  did  in  Carew  v.  Rutherford,  106  Mass.  1.  They 
have  not  undertaken  to  forbid  the  contractors  employing  pointers, 
as  they  did  in  Plant  v.  Woods,  176  Mass.  492.  So  far  as  the  labor 
unions  are  concerned  the  contractors  can  employ  pointers  if  they 
choose,  but  if  the  contractors  choose  to  give  the  work  of  pointing 
the  bricks  and  stones  to  others  the  unions  take  the  stand  that  the 
contractors  will  have  to  get  some  one  else  to  lay  them.  The  effect  of 
this  in  the  case  at  bar  appears  to  be  that  the  contractors  are  forced 
against  their  will  to  give  the  work  of  pointing  to  the  masons  and 
bricklayers.  But  the  fact  that  the  contractors  are  forced  to  do  what 
they  do  not  want  to  do  is  not  decisive  of  the  legality  of  the  labor 
union's  acts.  That  is  true  wherever  a  strike  is  successful.  The  con- 
tractors doubtless  would  have  liked  it  better  if  there  had  been  no  com- 
petition between  the  bricklayers'  and  masons'  unions  on  the  one  hand 
and  the  individual  pointers  on  the  other  hand.  But  there  is  competi- 
tion. There  being  competition,  they  prefer  the  course  they  have 
taken.  They  prefer  to  give  all  the  work  to  the  unions  rather  than 
get  non-union  men  to  lay  bricks  and  stone  to  be  pointed  by  the  plain- 
tiffs. 

Further,  the  effect  of  complying  with  the  labor  unions'  demands 
apparently  will  be  the  destruction  of  the  plaintiffs'  business.  But 
the  fact  that  the  business  of  a  plaintiff  is  destroyed  by  the  acts  of 
the  defendants  done  in  pursuance  of  their  right  of  competition  is 
not  decisive  of  the  illegality  of  the  acts.  It  was  well  said  by  Ham- 
mond, J.,  in  Martcll  v.  White,  185  Mass.  255,  260,  in  regard  to  the 
right  of  a  citizen  to  pursue  his  business  without  interference  by  a 
combination  to  destroy  it :  "  Speaking  generally,  however,  competi- 
tion in  business  is  permitted,  although  frequently  disastrous  to  those 
engaged  in  it.  It  is  always  selfish,  often  sharp,  and  sometimes 
deadly." 

We  cannot  say  on  the  evidence  that  pointing  is  something  foreign 


392  PICKETT   V.    WALSH.  [CHAP.    XI. 

to  the  work  of  a  bricklayer  or  a  stone  mason  and  therefore  something 
Avhich  a  union  of  brickla3^ers  and  stone  masons  have  no  right  to  com- 
pete for  or  insist  upon,  and  so  bring  the  case  within  Carew  v.  Ruther- 
ford, 106  Mass.  1 ;  March  v.  Bricklayers  &  Plasterers  Union  No.  1,  79 
Conn.  7;  and  Giblan  v.  ISTational  Amalgamated  Labourers'  Union, 
[1903],  2  K.  B.  600.  On  the  contrary  the  evidence  shows  that  in 
Boston  the  pointing  is  done  to  some  extent  by  bricklayers  and  sione 
masons,  and  there  is  no  evidence  that  the  trade  of  pointers  exists  out- 
side that  city. 

The  protest  of  the  defendant  unions  against  the  plaintiffs  being 
allowed  to  organize  a  pointers'  union  is  not  an  act  of  oppression.  It 
is  not  like  the  refusal  of  the  union  in  Quinn  v.  Leathem,  [1901],  A.  C. 
495,  to  work  with  the  non-union  men  or  to  admit  the  non-union  men 
to  their  union.  The  defendants'  unions  are  not  shown  to  be  unwilling 
to  admit  the  plaintiffs  to  membership  if  they  are  qualified  as  brick- 
layers or  stone  masons.  But  the  difficulty  is  that  the  plaintiffs  are 
not  so  qualified.  They  are  not  bricklayers  or  masons.  The  unions 
have  a  right  to  determine  what  kind  of  workmen  shall  compose  the 
imion,  and  to  insist  that  pointing  shall  not  be  a  separate  trade  so 
far  as  union  work  is  concerned.  They  have  not  undertaken  to  say 
that  the  contractors  shall  not  treat  the  two  trades  as  distinct.  What 
they  insist  upon  is  that  if  the  contractors  employ  them  they  shall 
employ  them  to  do  both  kinds  of  work. 

The  application  of  the  right  of  the  defendant  unions,  who  are  com- 
posed of  bricklayers  and  stone  masons,  to  compete  with  the  individual 
plaintiffs,  who  can  do  nothing  but  pointing  (as  we  have  said),  is  in 
the  case  at  bar  disastrous  to  the  pointers  and  hard  on  the  contractors. 
But  this  is  not  the  first  case  where  the  exercise  of  the  right  of  competi- 
tion ends  in  such  a  result.  The  case  at  bar  is  an  instance  where  the 
evils  which  are  or  may  be  incident  to  competition  bear  very  harshly 
on  those  interested,  but  in  spite  of  such  evils  competition  is  necessary 
to  the  welfare  of  the  community. 

So  far  as  previous  decisions  go  the  case  which  comes  nearest  to  the 
case  at  bar  in  the  kind  of  question  raised  is  that  of  Allen  v.  Flood, 
[1898],  A.  C.  1.  In  that  case  there  was  a  dispute  between  shipwrights 
and  boiler  makers  as  to  iron  work  in  shipbuilding.  It  was  stated  by 
some  of  the  judges  (see  for  example  Lord  Watson  at  p.  99;  Lord 
Herschell  at  p.  129;  Lord  Macnaghten  at  p.  151)  that  it  was  lawful 
for  eitber  to  strike  to  get  this  work  from  tbe  other.  But  the  decision 
in  Allen  v.  Flood  went  off  on  another  ground.  See  Lord  Halsbury, 
Ch.,  in  Qninn  v.  Leathem,  [1901],  A.  C.  495. 

The  defendants  have  urged  upon  us  the  case  of  Bowen  v.  Matheson, 
14  Allen,  199.  But  although  so  far  as  the  third  cause  of  action  here 
in  question  is  concerned  we  liave  reached  the  result  arrived  at  in  that 
case,  we  have  reached  it  on  other  grounds.  That  case  went  up  on 
demurrer  and  the  ground  on  whicli  that  case  was  decided  was  that 


CHAP.    XI.]  PROCUIIIXG   REFUSAL   TO    CONTUACT.  393 

on  the  allegations  in  the  declaration  it  was  to  be  treated  as  one  of  the 
class  of  cases  of  which  Parker  v.  Huntington,  2  Gray,  124,  is  the  lead- 
ing case  in  this  Commonwealth,  and  Bilafsky  v.  Conveyancers  Title 
Ins.  Co.,  193  Mass.  504,  is  the  last,  namely,  cases  in  which  the  allega- 
tions of  conspiracy  are  not  allegations  of  a  tortious  act  in  and  of 
themselves,  but  are  simply  allegations  that  the  defendants  joined  in 
doing  acts  otherwise  alleged  to  be  tortious.  It  is  not  now  material 
to  inquire  whether  Bowen  v.  Mathcson  should  or  should  not  have  been 
held  to  belong  to  this  class  of  cases,  for  it  is  settled  in  this  Common- 
wealth, as  we  have  already  said,  that  the  line  within  which  a  combina- 
tion of  individuals  like  a  labor  union  must  confine  its  actions  is 
drawn  much  closer  than  in  case  of  the  same  individuals  acting  sepa- 
rately. 

The  plaintiffs  have  asked  us  to  find  on  the  evidence  that  the  actions 
of  the  unions  and  of  the  business  agents  and  other  officers  and  of  the 
members  in  compelling  L.  P.  Soule  and  Son  Company  to  discharge 
"  the  plaintiffs  was  due  in  part  to  a  desire  to  further  and  protect 
their  own  interests,  or  what  they  conceived  to  be  such,  but  more  to 
a  reckless  and  wanton,  if  not  malicious,  disregard  of  the  rights  of 
the  plaintiffs  and  of  others  engaged  in  the  business  of  pointing  and 
to  a  determination  to  force  them  out  of  business  and  thereby  deprive 
them  of  their  accustomed  means  of  earning  a  livelihood." 

"We  find  on  the  evidence  that  the  plaintiffs  have  not  made  out  the 
fact  that  the  defendants'  action  was  due  to  a  reckless  and  wanton, 
if  not  malicious  disregard  of  the  rights  of  the  plaintiffs  and  of  others 
engaged  in  the  business  of  pointing.  Under  these  circumstances  we 
do  not  find  it  necessary  to  decide  what  would  have  been  the  result 
had  we  found  that  fact.  See  in  this  connection  Bowen,  L.  J.,  in 
Mogul  Steamship  Co.  v.  McGregor,  23  Q.  B.  D.  598,  fil5. 

It  follows  that  the  third  clause  of  the  decree,  which  follows  the 
third  prayer  of  the  bill,  must  be  stricken  out. 

This  brings  us  to  the  legality  of  the  strike  by  the  union  bricklayers 
and  masons  employed  by  the  L.  P.  Soule  and  Son  Company  on  other 
buildings  because  that  corporation  was  doing  work  on  a  building  on 
which  work  was  being  done  by  pointers  employed  not  by  the  L.  P. 
Soule  and  Son  Company  but  by  the  owners  of  the  building. 

That  strike  has  an  element  in  it  like  that  in  a  sympathetic  strike, 
in  a  boycott  and  in  a  blacklisting,  namely:  It  is  a  refusal  to  work 
for  A,  with  whom  the  strikers  have  no  dispute,  because  A  works  for 
B,  with  whom  the  strikers  have  a  dispute,  for  the  purpose  of  forcing 
A  to  force  B  to  yield  to  the  strikers'  demands.  In  the  case  at  bar  the 
strike  on  the  L.  P.  Soule  and  Son  Company  was  a  strike  on  that 
contractor  to  force  it  to  force  the  owner  of  the  Ford  Building  to  give 
the  work  of  pointing  to  the  defendant  unions.  That  passes  beyond  a 
case  of  competition  where  the  owner  of  the  Ford  Building  is  left  to 
choose  between  the  two  competitors.     Such  a  strike  is  in  effect  com- 


394  PICKETT    V.    WALSH.  [CHAP.    XI. 

pelling  the  L.  P.  Soule  and  Son  Company  to  join  in  a  boycott  on  the 
owner  of  the  Ford  Building.  It  is  a  combination  by  the  union  to 
obtain  a  decision  in  their  favor  by  forcing  third  persons  who  have 
no  interest  in  the  dispute  to  force  the  employer  to  decide  the  dispute 
in  their  (the  defendant  unions')  favor.  Such  a  strike  is  not  a  jus- 
tifiable interference  with  the  right  of  the  plaintiffs  to  pursue  their 
calling  as  they  think  best.  In  our  opinion  organized  labor's  right  of 
coercion  and  compulsion  is  limited  to  strikes  against  persons  with 
whom  the  organization  has  a  trade  dispute;  or  to  put  it  in  another 
way,  we  are  of  opinion  that  a  strike  against  A,  with  whom  the 
strikers  have  no  trade  dispute,  to  compel  A  to  force  B  to  yield  to  the 
strikers'  demands,  is  an  unjustifiable  interference  with  the  right  of 
A  to  pursue  his  calling  as  he  thinks  best.  Only  two  cases  to  the  con- 
trary have  come  to  our  attention,  namely :  Bohn  Manuf .  Co.  v.  Hollis, 
54  Minn.  223,  and  Jeans  Clothing  Co.  v.  Watson,  168  Mo.  133.  The 
first  of  these  two  cases  was  overruled  on  this  point  in  Gray  v.  Building 
Trades  Council,  91  Minn.  171.  The  conclusion  to  which  we  have 
come  is  supported  by  My  Maryland  Lodge  v.  Adt,  100  Md.  238 ;  Gray 
V.  Building  Trades  Council,  91  Minn.  171;  Purington  v.  Hinchliff, 
219  111.  159;  Beck  v.  Kailway  Teamsters'  Protective  Union,  118  Mich. 
497;  Crump  v.  Commonwealth,  84  Va.  927;  State  v.  Glidden,  55 
Conn.  46 ;  Purvis  v.  United  Brotherhood  of  Carpenters,  214  Penn. 
St.  348 ;  Gatzow  v.  Buening,  106  Wis.  1 ;  Barr  v.  Essex  Trades  Coun- 
cil, 8  Dick.  101;  Temperton  v.  Kussell,  [1893],  1  Q.  B.  715;  Taft,  J., 
in  Toledo,  Ann  Arbor  &  North  Michigan  Bailway  v.  Pennsylvania 
Co.,  54  Fed.  Eep.  730 ;  Loewe  v.  California  State  Federation  of  Labor, 
139  Fed.  Eep.  71;  Hopkins  v.  Osley  Stave  Co.,  83  Fed.  Eep. 
912;  Casey  v.  Cincinnati  Typographical  Union  No.  3,  45  Fed.  Eep. 
135. 

It  is  settled  in  this  Commonwealth  by  a  long  line  of  cases  that  a 
defendant  is  liable  for  an  intentional  and  unjustifiable  interference 
with  the  pursuit  on  the  part  of  the  plaintiff  of  his  calling,  whether 
it  be  of  labor  or  business.  Walker  v.  Cronin,  107  Mass.  555.  Carew 
V.  Euthcrford,  106  Mass.  1.  Vegelahn  v.  Guntner,  167  Mass. 
92.  Plant  v.  Woods,  176  Mass.  492.  Martell  v.  White,  185  Mass. 
255. 

For  the  reason  that  the  strike  on  the  buildings  being  erected  by 
the  L.  P.  Soule  and  Son  Company  was  not  a  strike  in  a  trade  dispute 
between  the  union  and  that  corporation,  the  first  and  second  clauses 
of  the  decree  were  in  substance  correct.  Eobert  H.  Pickett,  however, 
is  the  only  plaintiff  wbo  is  shown  to  have  had  any  interest  in  the 
work  on  the  Ford  Building,  and  therefore  the  second  clause  of  the 
decree  alone  should  stand. 

A  few  matters  of  detail  remain  to  be  dealt  with. 

All  tbaf  tlie  Bricklayers'  Union  No.  27  seems  to  have  done  was  to 
adopt  working  rules  making  pointing  a  part  of  tlie  trade  of  brick- 


CHAP.    XI.]  PROCURING   REFUSAL   TO    CONTRACT.  395 

laying.  There  is  no  evidence  that  they  authorized  tlic  sending  of  the 
circular  letter  or  took  part  in  the  strike.  That  union  and  tlie  mem- 
bers of  it  sliould  be  stricken  from  the  decree. 

No  objection  has  been  taken  to  the  decree  in  favor  of  Robert  H. 
Pickett  on  the  ground  that  damages  would  have  given  him  adequate 
compensation  for  breach  of  his  contract.  For  that  reason  it  is  not 
necessary  to  consider  whether  his  proper  remedy  was  an  action  at  law 
for  damages,  as  in  Carcw  v.  Riitberford,  106  Mass.  1,  Wallcer  v. 
Cronin,  107  Mass.  555,  Berry  v.  Donovan,  188  Mass.  353,  and  Quinn 
V.  Leathem,   [1901],  A.  C.  495. 

There  is  a  point  of  practice  which  must  be  noticed.  As  we  have 
said,  the  plaintiifs  have  undertaken  to  make  three  unincorporated 
labor  unions  parties  defendant.  That  is  an  impossibility.  There  is 
no  such  entity  known  to  the  law  as  an  unincorporated  association,  and 
consequently  it  cannot  be  made  a  party  defendant.  That  was  con- 
ceded in  Taff  Vale  Railway  v.  Amalgamated  Society  of  Railway 
Servants,  [1901],  A.  C.  426.  The  point  decided  in  tbat  case  was  that 
the  labor  union  defendant  in  that  case  could  be  sued  because  it  was 
registered  under  Trades  Union  Acts  1871,  c.  31,  and  1876,  c.  22.  At 
law,  if  the  objection  is  properly  taken,  every  member  of  an  unincor- 
porated association  must  be  joined  as  a  party  defendant.  In  equity, 
if  the  members  are  numerous,  a  number  of  members  may  be  made 
parties  defendant  as  representatives  of  the  class.  The  practice  in 
Masaschusetts  in  suits  against  members  of  unincorporated  labor 
unions  generally  has  been  in  accordance  with  these  well  settled  prin- 
ciples. See  Bowen  v.  ]\Iatheson,  14  Allen,  499 ;  Carew  v.  Rutherford, 
106  Mass.  1;  Plant  v.  Woods,  176  Mass.  492;  Martell  v.  White,  185 
Mass.  255.  A  trade  union  was  made  a  party  defendant  in  Vegelahn 
V.  Guntner,  167  Mass.  92,  and  the  anomaly  seems  to  have  escaped 
attention.  The  judge  Avho  entered  tlie  decree  in  the  case  at  bar 
made  it  apply  to  the  unions  "  and  each  and  every  member  thereof." 
He  seems  to  have  treated  the  case  as  a  case  where  a  numerous  body 
had  been  properly  represented  by  defendants  joined  for  that  purpose. 
Possibly,  so  far  as  the  trial  of  tlie  case  was  concerned,  the  members 
of  these  two  unions  were  in  fact  represented  by  the  individual  de- 
fendants. But  there  is  nothing  on  the  record  which  justifies  a  decree 
against  "  each  and  every  member  "  of  the  three  unions  on  the  ground 
that  the  defendants  were  joined  as  representing  tlie  individual  mem- 
bers of  the  unions  constituting  a  numerous  class  of  defendants.  The 
three  unions  should  be  stricken  from  the  bill  as  parties  defendant, 
and  proper  allegations  should  be  made  to  bind  the  members  of  the 
two  unions  as  parties  defendant.  If  the  individual  defendants  were 
proper  representatives  of  the  members  of  the  unions  in  question,  and 
these  members  would  suffer  no  damage  from  the  bill  being  so  amended 
now,  that  can  be  done.  The  cases  are  collected  in  Fay  v.  Walsh,  190 
Mass.  374. 


396  klingel's  phaemacy  v.  sharp  &  dohme.    [chap.  XI. 

Upon  the  bill  being  so  amended  within  sixty  days  the  decree  may 
be  modified  as  hereinbefore  set  forth,  and  on  being  so  modified, 
affirmed;    otherwise  the  decree  must  be  reversed. 

So  ordered. 


KLINGEL'S  PHAEMACY  v.  SHAEP  &  DOHME. 
Court  of  Appeals  of  Maryland,  November,  1906.     104  Md.  218. 

The  case  is  stated  in  the  opinion. 

McSherry,  C.  J.  The  question  now  before  us  is  merely  one  of 
pleading  and  involves  only  the  sufficiency  of  the  averments  of  the 
declaration.  To  the  declaration  the  defendants  demurred  and  the 
Superior  Court  of  Baltimore  City  sustained  the  demurrer  and  en- 
tered judgment  for  the  defendants  for  costs,  and  from  that  judgment 
this  appeal  was  taken.  In  order  to  determine  whether  the  ruling  of 
the  Superior  Court  was  correct  it  will  be  necessary  to  set  forth  with 
some  fullness  the  allegation  of  the  declaration;  and  the  objections 
which  have  been  urged  against  its  legal  sufficiency  will  then  be  stated 
and  considered. 

The  declaration  avers  that  Klingel's  Pharmacy  of  Baltimore  City, 
the  plaintiff,  is  a  duly  licensed  incorporated  retail  vendor  of  drugs 
and  druggists'  supplies;  that  it  was  and  still  is  able,  ready  and  will- 
ing to  pay  cash  for  all  kinds  of  drugs  and  druggists'  supplies  needed 
by  it  and  suitable  for  the  proper  conducting  of  its  said  business.  That 
the  defendants,  the  Calvert  Drug  Company,  and  Sharp  &  Dohme 
are  corporations  which  have  been  for  some  time  and  still  are  engaged 
in  the  business  of  selling  drugs  and  druggists'  supplies.  That  the 
other  defendant,  the  Baltimore  Eetail  Drug  Association,  is  a  cor- 
poration formed  and  organized  for  the  purpose,  amongst  other  things, 
of  unlawfully  maintaining  amongst  dealers  in  drugs  and  druggists' 
supplies,  the  maximum  rate  schedule  of  prices  and  of  preventing,  in 
restraint  of  trade,  all  vendors  of  drugs  and  druggists'  supplies,  who 
are  unwilling  to  acquiesce  in  and  submit  to  the  prices  so  fixed  by  it, 
from  buying  at  any  price  the  drugs  and  druggists'  supplies  needed 
and  desired  by  them  in  their  business,  by  the  unlawful  coercion  of 
threats  that  any  and  all  vendors  of  drugs  and  druggists'  supplies 
who  shall  sell  for  less  than  the  schedule  prices  shall  be  themselves 
blacklisted  anrl  all  sales  of  drugs  and  flruggists'  supplies  be  refused 
them;  and  that  all  the  members  of  said  Eetail  Drug  Association  are 
bound  by  an  agreement  not  to  sell  such  supplies  to  any  person  or 
corporation  who  will  not  agree  to  maintain  its  maximum  schedule 
of  prices.  That  the  plnintifp  has  steadily  refused  to  become  a  member 
of  said  Baltimore  Eetail  Drug  Association,  or  to  unite  with  it  and 
with  its  members  and  with  the  other  named  defendants  in  said  com- 


CnAP.    XI.]  rROCURING   REFUSAL   TO    CONTRACT.  397 

bination  and  conspiracy  to  coerce  the  dealers  in  drugs  and  druggists' 
supplies  to  maintain  said  established  prices  l)y  refusing  to  sell  to  them 
and  by  threats  that  unless  they  shall  so  maintain  the  same  they  shall 
be  boycotted  and  placed  on  the  blacklist  and  be  disabled  from  buying 
any  drugs  and  druggists'  supplies  whatever.  That  tliough  the  plain- 
tiff has  repeatedly  applied  to  the  Calvert  Drug  Company  and  to  Sharp 
&  Dohme  and  to  sundry  other  druggists  to  sell  to  it  drugs  and  drug- 
gists' supplies  tendering  itself  ready,  able  and  willing  to  pay  cash, 
j'et  the  said  defendants  and  said  other  druggists  have  refused  to  sell 
it  drugs  or  druggists'  supplies  at  any  price  whatsoever,  because  of 
said  unlawful  conspiracy  and  combination,  coupled  with  the  threat 
that  for  any  violation  of  such  unlawful  combination  and  conspiracy 
the  parties  violating  it  should  themselves  be  blacklisted  and  all  sales 
be  refused  to  them.  That  the  avowed  object  of  the  conspiracy  was 
and  is  to  maintain  in  restraint  of  trade  a  maximum  price  of  drugs 
and  druggists'  supplies  and  to  compel  the  plaintiff  to  become  a  mem- 
ber of  said  combination  and  to  agree  to  charge  all  its  customers  such 
maximum  price  or  to  be  driven  out  of  business.  That  the  Retail 
Drug  Association  is  wholly  composed  in  its  membership  of  such 
vendors,  and  that  the  entire  power  of  the  association  and  of  its  mem- 
bers is  unlawfully  exerted  to  coerce,  by  blacklisting  and  by  potent  and 
effective  threats  of  boycotting,  the  illegal  purposes  and  acts  afore- 
said. That  the  wrongful  refusal  of  the  Calvert  Drug  Company  and 
of  Sharp  &  Dohme  and  of  other  parties  to  sell  to  the  plaintiff  w^as 
and  is  the  direct  result  exclusively  of  said  unlawful  combination  and 
conspiracy  and  of  the  wrongful  actings  and  doings  of  said  Eetail  Drug 
Association  in  carrying  out  the  unlawful  object  and  purpose  of  said 
conspiracy.  That  the  action  of  the  defendants  is  not  an  action  taken 
by  them  in  the  bona  fide  exercise  of  their  supposed  right  to  sell  or 
to  refuse  to  sell  to  whomsoever  they  please,  nor  in  the  bona  fide  exer- 
cise of  their  supposed  right  to  advise  other  vendors  as  to  selling  or 
not  selling  their  drugs  and  druggists'  supplies;  but  on  the  contrary 
that  by  the  said  combination  and  conspiracy  the  defendants  did 
wrongfully  and  maliciously  intend  to  injure  and  destroy  the  plaintiff's 
business;  which  they  have  succeeded  in  doing,  and  that  such  injury 
to  the  business  of  the  plaintiff  is  the  direct  result  of  said  illegal, 
malicious  and  wrongful  conspiracy  and  of  the  acts  done  in  further- 
ance thereof. 

Here,  then,  it  is  distinctly  charged  that  there  is  an  unlawful  con- 
spiracy to  exact  and  to  maintain  a  maximum  schedule  of  prices  for 
drugs  and  druggists'  supplies  in  restraint  of  trade;  and  it  is  with 
equal  directness  alleged  that  because  the  plaintiff  will  not  enter  into 
that  combination  and  conspiracy  no  drugs  or  supplies  have  been  or 
will  be  sold  to  it  by  the  defendants ;  and  that  no  other  dealer  in  those 
articles  is  or  will  be  allowed  to  sell  to  it  without  incurring  the  penalty 
of  being  blacklisted  and  boycotted  as  threatened  by  the  defendants, 


398  klingel's  pharmacy  v.  sharp  &  dohme.     [chap.  XI. 

which  action  of  the  defendants  was  not  taken  in  the  bona  fide  exercise 
of  their  right  to  sell  or  to  refuse  to  sell  to  whom  they  pleased,  but  was 
taken  with  a  malicious  intent  to  injure  and  destroy  the  business  of 
the  plaintiff,  whereby  the  plaintiff  has  been  wholly  deprived  of  the 
ability  to  purchase  supplies  and  has  as  a  result  been  prevented  from 
pursuing  its  lawful  avocation.  By  sustaining  the  demurrer  the  Supe- 
rior Court  held  that  these  facts,  if  true,  did  not  constitute  a  valid 
cause  of  action.  We  are  not  apprised  by  the  record  as  to  the  ground 
upon  which  the  trial  Judge  based  his  decision;  but  the  reasons 
assigned  in  the  brief  of  the  appellees  to  sustain  that  ruling  are,  first, 
because  (a)  an  agreement  or  conspiracy  not  to  sell  to  the  plaintiff 
is  not  actionable;  and,  because  (b)  no  facts  are  alleged  that  amount 
to  unlawful  coercion  by  the  defendants  to  the  damage  of  the  plaintiff. 
Secondly,  because  the  declaration  is  bad  for  misjoinder.  These 
grounds  are  not  tenable,  as  we  shall  see  in  a  moment.  They  have 
been  assumed  obviously  in  consequence  of  a  misinterpretation  of  the 
averments  of  the  narr. 

In  the  last  analysis  it  will  be  seen  that  there  are  three  salient  facts 
averred  in  the  declaration.  First:  A  combination  to  exact  and  main- 
tain a  maximum  schedule  of  prices  for  drugs  and  druggists'  supplies 
is  asserted  to  exist  between  the  defendants  and  others  in  restraint  of 
trade.  That  combination  if  it  does  exist,  and  we  are  bound  to  assume 
that  it  does  when  dealing  with  the  issue  raised  by  the  demurrer,  is  a 
criminal  conspiracy  at  the  common  law  and  is  punishable  by  fine  and 
imprisonment  after  indictment  and  conviction.  It  is  the  offence  of 
forestalling  the  market,  and  is  defined  to  be  every  practice  or  device 
by  act,  conspiracy,  words  or  news  to  enhance  the  price  of  victuals  or 
other  merchandise.  Eoscoe  Ev.,  437;  3  Inst.,  196;  3  Bac.  Ab.,  261; 
1  Euss.,  1G9.  As  it  creates  a  monopoly  it  was  held  to  be  unlawful  at 
the  common  law  as  being  in  restraint  of  trade  and  against  public 
policy.  Mitchcl  v.  Eeynolds,  1  P.  Wms.  181.  The  English  statutes 
on  this  subject  which  were  merely  declaratory  of  the  common  law 
v/ere  repealed  by  7  &  8  Vict.,  ch.  24.  In  the  United  States,  whilst 
we  hear  little  now  about  forestalling,  engrossing  or  rcgrating,  we 
hear  much  of  "  corners  "  and  "  trusts  "  which  are,  in  many  instances, 
the  old  offences  under  new  names,  since  they  are  frequently  attempts 
by  a  combination  or  conspiracy  of  persons  to  monopolize  an  article 
of  trade  or  commerce  and  so  to  enhance  its  price.  Where  the  direct 
and  immediate  effects  of  a  contract  or  combination  among  particular 
dealers  in  a  commodity  is  to  destroy  coni])ctition  between  them  and 
otbors,  so  that  the  parties  to  the  contract  or  combination  may  obtain 
increased  prices  for  themselves,  such  contract  or  combination  amounts 
to  a  restraint  of  trade  in  the  commodity,  even  though  contracts  to 
buy  such  commodity  at  the  enhanced  price  are  constantly  being  made. 
Total  Bupprossion  of  the  trade  in  tlic  commodity  is  not  necessary  in 
order  to  render  the  combination  one  in  restraint  of  trade.    Addyston 


CHAP.    Xl.]  PROCURING   REFUSAL   TO    CONTRACT.  399 

Pipe  &  steel  Co.  v.  U.  S.,  175  U.  S.  244.  Thougli  this  was  said  by  the 
Supreme  Court  in  a  case  which  arose  under  the  anti-trust  Act  of 
Congress  of  July  2nd,  1890,  it  equally  applies  to  combinations  and 
conspiracies  of  the  character  described  in  the  declaration  set  forth  in 
the  record  now  before  us.  A  combination  is  a  conspiracy  in  law 
whenever  the  act  to  be  done  has  a  necessary  tendency  to  prejudice  the 
public,  or  oppress  individuals,  by  unjustly  subjecting  them  to  the 
power  of  the  confederates,  and  giving  ell'ect  to  the  purposes  of  the 
latter,  whether  of  extortion  or  mischief;  and  the  same  proposition  in 
one  form  of  expression  or  another,  is  laid  down  in  all  the  criminal 
law.  Bish.  Cr.  L.,  sec.  172 ;  Desty  Cr.  L.,  sec.  2 ;  3  Chitty  Cr.  L.,  sec. 
1138;  Arch.  Cr.  Pr.,  1830.  A  "corner"  when  accomplished  by  con- 
federation, to  raise  or  depress  prices  and  operate  on  the  market,  is 
a  conspiracy,  if  the  means  be  unlawful.  Morris  Run  Coal  Co.  v. 
Barclay  Coal  Co.,  68  Pa.  173;  People  v.  Melvil,  2  Wheeler  Cr.  C. 
2G2;  People  v.  North  River  Sugar  Refining  Co.,  2  L.  R.  A.  33  and 
notes.  In  Van  Horn  v.  Van  Horn,  52  N.  J.  L.  284,  it  was  ruled 
that  an  action  will  lie  for  a  combination  or  conspiracy  by  fraudulent 
and  malicious  acts,  to  drive  a  trader  out  of  business,  resulting  in 
damage.     S.  C.  10  L.  R.  A.  184. 

The  cases  of  Kimball  v.  Harman  and  Burch,  34  Md.  407,  and  Rob- 
inson V.  Park  et  al.,  76  Md.  118,  decide  nothing  at  variance  with  the 
principles  just  stated.  They  hold  that  an  act  which  does  not  consti- 
tute a  cause  of  action  when  done  by  one  person  does  not  become  ac- 
tionable merely  because  it  has  been  done  by  conspirators ;  that  an  un- 
lawful combination  to  do  an  act,  which,  if  done,  would  injure  an- 
other, does  not  of  itself  and  without  more,  furnish  a  ground  for  a 
civil  suit;  and  finally,  as  a  corollary  to  the  previous  proposition,  that 
though  a  conspiracy  to  do  an  injury  exists  a  plaintiff  cannot  recover 
against  the  conspirators  unless  some  act  has  been  done  in  furtherance 
of  the  conspiracy  which  has  resulted  in  damage  to  him.  "  The 
quality  of  the  act  and  the  nature  of  the  injury  inflicted  by  it,  must 
determine  the  question  whether  the  action  will  lie."  Kimball  v.  Har- 
man, supra.  Having  described  a  combination  which  at  the  common 
law  is  a  criminal  conspiracy,  the  declaration  proceeds  to  set  forth  the 
acts  done  in  execution  of  the  unlawful  conspiracy,  and  to  aver  that 
they  were  maliciously  done  and  then  to  allege  the  injury  resulting 
therefrom. 

The  second  salient  fact  averred  in  the  narr.  consists  of  a  state- 
ment of  the  acts  done  in  furtherance  of  the  conspiracy.  Those  acts 
are  twofold.  First,  a  refusal  by  the  defendants  to  sell  to  the  plaintiff 
—  an  act  they  would  have  the  legal  right  to  do,  if  when  done  it  were 
not  done  in  the  execution  of  and  to  carry  into  effect  a  criminal  con- 
spiracy in  restraint  of  trade.  And  secondly,  coercion  and  intimidation 
practised  by  the  defendants  upon  other  vendors  of  like  commodities, 
by  means  of  threats  to  blacklist  and  to  boycott  such  vendors,  if  they 


400  klingel's  pharmacy  v.  sharp  &  dohme.     [chap.  Xlo 

sold  to  the  plaintiff  any  drugs  or  druggists'  supplies,  whereby  they 
were  deterred  from  selling  those  articles  to  the  plaintiff,  unless  it 
joined  the  association. 

"  It  is  a  part  of  every  man's  legal  rights,"  said  Judge  Cooley,  "  that 
he  be  left  at  liberty  to  refuse  business  relations  with  any  person  whom- 
soever, whether  the  refusal  rests  upon  reason,  or  is  the  result  of  whim, 
caprice,  prejudice  or  malice."  Cooley,  Torts,  278.  Again:  "The  ex- 
ercise by  one  man  of  his  legal  right  cannot  be  a  legal  wrong  to 
another.  .  .  .  Whatever  one  has  a  legal  right  to  do  another  can  have 
no  right  to  complain  of."  lb.  688.  It  was  upon  this  principle  that 
the  decision  in  Bohn  Manf.  Co.  v.  N.  W.  Lumbermen  Assn.,  54  Minn. 
223,  s.  c,  21  L.  E.  A.  337,  was  placed.  In  that  case  a  large  number 
of  retail  lumber  dealers  formed  a  voluntary  association  by  which  they 
mutually  agreed  that  they  would  not  deal  with  any  manufacturer  or 
wholesale  dealer  who  should  sell  lumber  directly  to  consumers,  not 
dealers,  at  any  point  where  a  member  of  the  association  was  carrying 
on  a  retail  yard,  and  they  provided  in  their  by-laM's  that  whenever 
any  wholesale  dealer  or  manufacturer  made  any  such  sale,  the  secre- 
tary of  the  association  should  notify  all  members  of  the  fact.  The 
plaintiff  having  made  such  a  sale,  the  secretary  threatened  to  send 
notice  of  the  fact  to  all  the  members  of  the  association;  and  it  was 
held  that  no  action  would  lie  and  that  there  was  no  ground  for  in- 
junction.^ There  was  nothing  unlawful  in  this.  Each  member  of 
the  association  had  the  legal  right  to  refuse  to  sell  the  lumber  which 
he  owned,  if  he  saw  fit  to  refuse,  and  the  collective  refusal  of  all 
members  was  equally  lawful.  So,  too,  the  defendants  in  this  case 
had  a  perfect  legal  right  to  refuse  to  sell  to  the  plaintiff  any  drugs 
and  druggists'  supplies  owned  by  them;  and  it  would  have  been 
wholly  immaterial  whether  that  refusal  was  the  result  of  whim, 
caprice,  prejudice  or  malice,  if  the  bare  refusal  to  sell  had  been  the 
head  and  front  of  their  offending.  But  the  refusal  to  sell  was  not  the 
exercise  of  a  legal  right,  if  that  refusal  were  a  mere  step  in  the 
development  and  enforcement  of  a  scheme  to  forestall  the  market  in 
restraint  of  trade,  or  to  drive  the  plaintiff  into  becoming  a  member 
of  an  organization  which  would  control  the  prices  he  could  charge 
for  his  wares  and  which  would  thereby  deprive  him  of  the  liberty  to 
contract  for  the  sale  of  his  goods  according  to  his  own  judgment 
of  their  value.  Whilst  an  act  which  is  in  itself  lawful  can  never  be- 
come unlawful  simply  because  it  may  be  done  by  several  persons  in- 
stead of  by  only  one;  yet  the  same  act  may  be  unlawful  when  it  is 
a  means  of  accomplishing  an  unlawful  end.  An  act  performed  in 
furthering  an  unlawful  enterprise  cannot  be  a  lawful  act,  though 
the  same  act  would  I  if  free  from  censure  if  done  with  some  other 
view.  Tf  it  be  conceded  tbat  a  person  has  the  lawful  right  to  do  a 
thing  irrespective  of  his  motive   for  doing  it,   the   proposition   that 

'  Sne  Oray   v.   Trades    Council,   91    Minn.    171,   cited    anto,   p.    ■'504. 


CHAP.    XI.]  PKOCURING   REFUSAL    TO    CONTRACT.  401 

an  act  lawful  in  itself  is  not  converted  by  a  bad  motive  into  an 
unlawful  act,  is  a  mere  abstract  truism.  But  if  the  meaning  of  the 
proposition  is  that  when  a  person  or  an  aggregation  of  persons, 
if  influenced  by  one  kind  of  motive,  has  a  lawful  right  to  do  a  thing, 
the  act  is  still  lawful  when  done  with  any  motive,  or  that  an  act 
lawful  under  one  set  of  circumstances  is  therefore  lawful  under  every 
conceivable  set  of  circumstances,  then  the  proposition  is  neither 
logically  nor  legally  accurate:  In  so  far  as  a  right  is  absolutely  and 
unqualifiedly  lawful  it  is  lawful  whatever  may  be  the  motive  of  the 
actor;  but  in  many  cases  the  lawfulness  of  an  act  which  causes 
damage  to  another  may  depend  upon  whether  the  act  is  for  justifiable 
cause,  and  this  justification  may  be  foimd  sometimes  in  the  circum- 
stances under  which  it  is  done,  irrespective  of  motive,  sometimes  in 
the  motive  alone  and  sometimes  in  the  circumstances  and  the  motive 
combined.  Plant  v.  Woods,  176  Mass.  492,  s.  c,  51  L.  E.  A.  339. 
The  intent  or  knowledge  with  which  an  act  is  done  may  make  a  law- 
ful act  unlawful.  It  is  no  offence  to  receive  stolen  goods,  it  is  an 
offence  to  receive  them  knowing  them  to  be  stolen.  The  act  of  receiv- 
ing the  goods  is  identically  the  same  in  each  instance.  In  the  one 
case  it  is  lawful,  in  the  other,  the  same  act  is  unlawful  because  the 
scienter  makes  it  so.  To  utter  forged  paper  is  no  offence,  but  to  utter 
it  knowing  it  to  be  forged  is  criminal.  It  is  the  same  act  in  each 
instance,  but  it  is  lawful  or  unlawful  according  to  the  absence  or  the 
presence  of  a  guilty  knowledge.  Hence  it  is  fallacious  to  say  that  an 
act  which  is  lawful  can  never  become  unlawful;  and  equally  fal- 
lacious to  say  that  though  it  is  lawful  for  a  person  to  refuse  to  sell 
to  another,  it  is  also  lawful  for  the  same  person  in  combination  with 
others  to  likewise  refuse  to  sell  when  such  refusal  forms  part  of  a 
scheme  to  raise  and  maintain  the  price  of  commodities  in  restraint  of 
trade,  and  is  not  the  bona  fide  exercise  of  their  right  to  refuse  to 
sell. 

The  declaration  goes  a  step  further  and  charges  that  the  defend- 
ants coerced  other  vendors  of  drugs  and  druggists'  supplies  to  abstain 
from  selling  those  articles  to  the  plaintiff,  and  that  they  did  this 
by  means  of  threats  of  blacklisting  and  boycotting  such  vendors  if 
they  should  sell  to  the  plaintiff  whilst  it  was  not  a  member  of  that 
combination,  by  reason  of  which  threats  those  vendors  were  intimi- 
dated and  were  deterred  from  selling  to  the  plaintiff.  The  plain 
meaning  of  all  this  is,  the  defendants  notified  the  plaintiff  that  un- 
less it  entered  into  the  union  or  combination  and  charged  the  same 
prices  which  other  members  thereof  were  required  to  charge,  the 
defendants  would  by  threats  of  coercion,  by  blacklisting  and  by  boy- 
cotting other  dealers,  deprive  the  plaintiff  of  the  ability  to  carry 
on  its  lawful  business.  Is  such  an  interference  with  the  legal  right 
of  an  individual  to  conduct  a  lawful  business  in  a  lawful  way  toler- 
ated by  the  law?    And  can  it  be  permitted  to  flourish  unscathed  be- 


402  klingel's  pharmacy  v.  sharp  &  dohme.    [chap.  xi. 

cause  no  open  deeds  of  violence  or  breaches  of  the  peace  have  been 
committed?  It  would  be  a  reproach  of  the  law  if  such  were  the 
case.  A  boycott  means  the  confederation,  generally  secret,  by  many 
persons  whose  intent  is  to  injure  another  by  preventing  all  persons 
from  doing  business  with  him  through  fear  of  incurring  the  dis- 
pleasure, persecution  and  vengeance  of  the  conspirators.  8  Cyc.  639. 
The  courts  have  generally  condemned  those  combinations  which  are 
formed  for  the  purpose  of  interfering,  otherwise  than  by  lawful  com- 
petition, with  the  business  affairs  of  others,  and  depriving  them  by 
means  of  threats  and  intimidations  of  the  right  to  conduct  the  busi- 
ness in  which  they  are  engaged  according  to  the  dictates  of  their  own 
judgment.  My  Md.  Lodge  v.  Adt,  100  Md.  248.  Whilst  an  owner  of 
property  has  the  legal  right  to  refuse  to  sell  it  to  another,  and 
whilst  as  in  the  case  of  Bohn  Manf.  Co.  v.  N.  W.  Lumbermen  Asst., 
supra,  several  owners  may  unite  to  do  the  same  thing,  just  as 
laborers  may  organize  to  improve  their  condition  and  to  secure  better 
wages  and  in  fact  may  refuse  to  work  unless  such  better  wages  are 
obtained  still  "  the  law  does  not  permit  either  an  employer  or  em- 
ployee to  use  force,  violence,  threats  of  force  or  threats  of  violence, 
intimidation  or  coercion  to  secure  these  ends  (My  Md.  Lodge  v. 
Adt,  supra),  nor  does  it  permit  vendors  to  resort,  with  impunity, 
to  the  like  means  to  force  or  compel  others  engaged  in  the  same 
business  to  abandon  their  own  method  of  conducting  a  lawful  business 
in  a  lawful  way.  In  Erdman  et  al.  v.  Mitchell  et  al.,  207  Pa.  79, 
it  was  held  that  a  conspiracy  by  a  number  of  persons  that  they 
will,  by  threats  and  strikes,  deprive  a  mechanic  of  the  right  to 
work  for  others  because  he  does  not  join  a  particular  union,  would 
be  restrained.  The  case  at  bar  involves  no  right  of  labor,  but  the 
principles  which  have  upheld  the  jurisdiction  of  courts  to  inter- 
vene to  prevent  injury  and  loss  that  would  result  to  both  em- 
ployer and  employee  if  a  threatened  strike  or  boycott  were  not 
prevented,  are  broad  enough  to  include  the  situation  presented  by 
the  declaration  now  before  us.  In  the  case  of  PlAnt  v.  Wood,  supra, 
it  was  held  that  members  of  a  labor  union  were  entitled  to  an  in- 
junction restraining  the  members  of  another  union  from  which  they 
had  withdrawn,  from  doing  acts  in  pursuance  of  a  conspiracy  to 
compel  their  reinstatement,  by  appeals  to  their  employers  to  induce 
them  to  rejoin  and  to  discharge  them  in  case  of  refusal,  accompanied 
by  threats  intimating  results  detrimental  to  the  employers'  business 
and  property  in  case  of  a  failure  to  comply,  coercive  in  effect  upon 
the  will,  although  they  committed  no  acts  of  personal  violence  or 
physical  injury  to  property,  where  complainants  have  been  injured 
by  such  acts,  and  tliere  is  reason  to  believe  that  further  proceedings 
of  the  same  kind  are  contemplated  which  will  result  in  still  more 
injury  to  llicri). 

Judgment  reversed. 


CHAP.    XI.]  PROCURING   REFUSAL   TO    CONTRACT.  403 


BEENNAN  V.  UNITED  HATTERS  OF  NORTH  AMERICA. 

Court  of  Errors  and  Appeals  of  New  Jersey,  November,  1906.    73  N.  J.  L.  729. 

The  case  is  stated  in  the  opinion. 

Pitney,  J.  This  was  an  action  of  tort,  brought  to  recover  damages 
sustained  by  the  plaintiff  through  interference  by  the  defendants 
with  his  employment  in  his  trade  as  a  hatter.  Plaintiff  was  a 
member  of  Local  Union  No.  17  of  the  United  Hatters  of  North 
America.  The  defendants  are  this  local  union  (sued  under  Pamph. 
1885,  p.  26,  as  a  voluntary  association  consisting  of  more  than  seven 
members)  and  twelve  individuals,  one  of  whom  was  the  secretary  of 
the  union,  and  the  other  eleven  constituted  a  committee  thereof,  known 
as  the  "  vigilance  committee."  The  plaintiif's  declaration  contains 
three  counts,  of  which  the  first  indicates  the  ground  of  recovery  that 
is  established  by  the  verdict.  It  alleges,  in  substances,  that  plaintiff 
was  a  member  of  the  "  United  Hatters  of  North  America,  Local  No. 
17,"  and  was  employed  by  the  firm  of  E.  V.  Connett  &  Co.,  in  the 
trade  and  occupation  of  the  manufacture  of  hats,  in  the  capacity  of 
foreman;  that  he  was  authorized,  under  the  constitution  and  by- 
laws of  the  United  Hatters,  to  act  in  such  capacity,  and  was  enjoying 
the  benefit  of  a  membership  card  issued  by  that  association,  certify- 
ing to  his  good  standing;  that  the  association  and  the  individual 
defendants  constituting  its  vigilance  committee,  in  order  to  injure  the 
plaintiff  in  his  said  trade  and  occupation,  on  August  6,  1902,  mali- 
ciously and  without  reasonable  or  probable  cause,  pretending  that 
plaintiff  had  violated  the  laws  of  the  defendant  "  United  Hatters  of 
North  America,  Local  No.  17,"  and  without  serving  the  plaintiff  with 
written  charges  of  the  alleged  violation,  and  without  giving  him 
notice  of  the  hearing  of  said  charges,  adjudged  the  plaintiff  to  be 
guilty  thereof,  and  directed  that  a  fine  of  $500  be  levied  upon  him; 
that  afterwards,  on  September  4,  1902,  at  a  meeting  of  the  defend- 
ant "  United  Hatters  of  North  America,  Local  No.  17,"  the  decision 
of  the  defendants  adjudging  the  plaintiff  guilty  as  aforesaid  was  re- 
versed and  set  aside;  that  by  reason  of  the  plaintiff's  refusal  to  pay 
the  said  fine  the  defendants  withdrew  from  him  the  benefit  of  his 
membership  card,  by  means  whereof  the  said  Connett  &  Co.  were 
compelled  to  and  did  refuse  to  continue  the  plaintiff  in  their  em- 
ploy, as  they  otherwise  would  have  done,  and  by  reason  thereof  the 
plaintiff  was  prevented  from  exercising  his  trade  and  occupation  of 
a  hat  manufacturer,  and  from  obtaining  any  engagement  or  em- 
ployment therein.  As  to  this  count  the  defendants  pleaded  the 
general  issue  —  not  guilty.  A  trial  being  had  before  the  judge  of 
the  Essex  Circuit  Court  and  a  jury,  there  was  a  general  verdict  in 


404  BRENNAN    V.    UNITED   HATTERS.  [CHAP.    XI. 

favor  of  the  plaintiff,  and  the  consequent  judgment  is  now  before  us 
for  review. 

The  assignments  of  error  relate  to  certain  rulings  of  the  trial 
judge  that  are  evidenced  by  bills  of  exceptions.  It  appears  that 
plaintiff  was  a  member  in  good  standing  of  the  United  Hatters' 
Union  and  was  working  in  Connett's  factory  as  one  of  several  hun- 
dred men,  all  of  whom  belonged  to  the  same  union.  He  was  a  fore- 
man, in  receipt  of  $18  per  week  as  wages.  By  the  rules  of  the  union 
no  man  could  be  employed  in  such  a  shop  unless  his  membership 
card  or  check  was  on  deposit  with  the  shop  steward,  who  was  an 
agent  of  the  union  at  the  factory.  By  the  same  rules  members  of  the 
union  were  not  permitted  to  work  in  the  shop  together  with  any  man 
who  was  not  a  member  of  the  union  or  not  in  possession  of  his  card. 
The  union  included  within  its  jurisdiction  about  2,200  men,  em- 
ployed in  about  fifteen  different  factories,  situate  in  a  district  com- 
prising Orange,  Hackettstown,  Bloomfield,  Millburn  and  Livingston. 
All  the  hat  factories  in  this  district  were  under  the  jurisdiction  of 
the  same  union.  By  an  agreement  made  between  the  union  and  the 
manufacturers,  every  man  employed  in  any  of  these  factories  must 
have  a  membership  card  on  deposit  with  the  shop  steward.  It  ap- 
pears that  by  the  rules  of  the  union  the  association  has  power  to 
fine  and  reprimand  or  otherwise  punish  any  member  violating  the 
laws  of  the  association  or  the  rules  of  trade.  The  vigilance  com- 
mittee has  power  to  transact  any  business  pertaining  to  the  welfare 
of  the  trade  in  the  time  intervening  between  the  regular  meetings 
of  the  union.  By  the  rule  relating  to  "  Trial  and  Appeal,"  it  is 
provided  as  follows :  "  Any  member  of  this  association  shall  be  en- 
titled to  due  notice  and  a  fair  trial  upon  being  accused  of  any  viola- 
tion of  its  laws  or  the  rules  of  trade,  but  no  member  shall  be  put  on 
trial  unless  charges  are  submitted  in  writing  by  a  member  of  the  as- 
sociation." It  appears  that  on  August  5,  1902,  a  meeting  of  the 
vigilance  committee  was  held,  at  the  instance  of  two  members  of  the 
association,  named  Sereno  and  Alvino,  to  investigate  a  complaint 
made  by  them  on  the  authority  of  Foreman  Brennan  (the  plaintiff 
herein)  against  one  Trancone,  to  the  effect  that  Trancone  had  ac- 
cused them  (Sereno  and  Alvino)  of  lying  in  wait  around  Brennan's 
house  for  the  purpose  of  doing  him  some  injury.  Brennan  was 
called  before  the  meeting  as  a  witness.  Trancone  appears  to  have 
been  present  as  the  party  accused.  Each  was  examined  by  the  com- 
mittee in  the  absence  of  the  other.  It  appears  from  the  minutes 
that  in  the  course  of  the  investigation  Trancone  stated  to  the  com- 
mittee (in  Brcnnan's  absence)  that  he  himself  had  on  several  oc- 
casions paid  Brennan  small  sums  of  money  "  to  get  good  work,"  and 
that  one  Panegraso  had  given  money  to  Brennan  for  the  same  pur- 
pose. Trancone  having  retired  from  the  presence  of  the  committee, 
Brennan  was  recalled,  and  the  statement  made  by  Trancone  before 


CHAP.    XI.]  PKOCURING    REFUSAL   TO    CONTRACT.  405 

the  committee  was  read  to  him.  Brennan  denied  it.  The  committee 
then  called  Trancone  before  Brennan  to  verify  his  statement.  Tran- 
cone  declared  that  his  statement  was  true  in  every  particular,  and 
Brennan  again  denied  the  charge.  Subsequently,  at  the  same  njeet- 
ing,  Panegraso  came  before  the  committee,  under  escort  of  Brennan 
"as  a  witness  to  prove  that  Trancone  lied."  Trancone  was  recalled 
and  reaffirmed  his  accusation  in  the  presence  of  Brennan,  Panegraso 
and  the  committee.  Thereupon  all  parties  were  notified  to  appear 
before  the  committee  on  the  following  afternoon  (August  Cth). 
Upon  that  date  another  meeting  of  the  vigilance  committee  was  held, 
concerning  which  the  minutes  disclosed  only  the  following :  "  Tim- 
othy Brennan's  case  was  then  taken  up,  and  Michael  Panegraso  was 
called  before  the  committee  to  answer  the  charge  that  he  had  ever 
given  money  to  Brennan.  He  denied  that  he  had  ever  given  money  to 
Brennan.  Mr.  Brennan  was  called  and  admitted  having  met  Pane- 
graso in  Bloomfield.  Motion  that  Michael  Panegraso  and  Benedetto 
Trancone  be  fined  the  sum  of  $500  each,  $250  down  and  $5  per  week, 
carried.  Motion  that  Mr.  Brennan  be  fined  the  sum  of  $500,  $250 
down  and  $1  per  week,  and  to  give  up  his  place  as  foreman  for  the 
space  of  one  year  in  Connett's  hat  factory,  carried  unanimously." 
This  action  of  the  vigilance  committee  was  reported  to  a  meeting 
of  the  association  held  on  the  following  date  (August  7th),  and  a 
motion  was  carried  that  the  report  be  adopted  as  read.  It  should 
be  observed  that  this  ratification  by  the  association  of  the  action  of 
its  committee  is  not  mentioned  in  the  plaintiff's  declaration  herein. 
In  order  to  sustain  the  judgment  under  review,  the  declaration  will  be 
treated  as  amended,  if  necessary,  in  this  regard.  On  August  15th 
the  secretary  of  the  union  (who  is  one  of  the  defendants  herein) 
went  to  Connett's  hat  factory,  where  Brennan  was  working,  explained 
to  him  the  action  taken  by  the  vigilance  committee  and  by  the  meet- 
ing of  the  association,  and  demanded  payment  of  the  $250.  Brennan 
refused  to  pay  it,  and  the  secretary  thereupon  went  to  the  shop 
steward  and  took  Brennan's  check  from  the  box.  It  is  inferable  from 
the  evidence  that  this  was  done  by  the  secretary  in  the  regular  course 
of  his  duty,  and  that  in  doing  it  he  acted  as  agent  for  the  association. 
Afterwards,  and  on  the  same  day,  Brennan's  counsel  wrote  to  the 
union,  protesting  against  the  action  taken,  on  the  ground  that  no 
charges  had  been  preferred  nor  any  notice  of  a  trial  or  hearing  given 
to  him,  as  required  by  the  laws  of  the  association.  Subsequently, 
and  under  date  of  August  17th,  a  charge  was  preferred  in  writing 
by  Trancone,  and  Brennan  was  notified  of  a  hearing  before  the  vigi- 
lance committee  to  be  lield  on  the  18th.  He  declined  to  attend,  on 
the  ground  that  he  could  not  appear  legally  until  his  card  was  re- 
turned to  him,  and  on  the  furtlier  ground  that  members  of  the 
vigilance  committee  had  made  public  statements  showing  that  they 
were  prejudiced  against  him.     At  a  meeting  of  the  association  held 


406  BRENNAN   V.    UNITED   HATTERS.  [CHAP.    XI. 

on  September  4th  a  motion  that  Brennan  be  exonerated  was  carried 
by  a  two-thirds  vote.  Shortly  thereafter  his  card  was  returned  to 
him  and  he  went  back  to  work  in  the  Connett  factory.  On  August 
15th,  a  few  minutes  after  the  secretary  of  the  union  took  up  Bren- 
nan's  membership  card,  he  was  discharged  by  the  head  foreman  on 
the  ground  that  Brennan  no  longer  had  his  check  in  the  box.  Upon 
being  exonerated  by  the  union,  Brennan  informed  the  head  foreman 
of  the  fact,  and  was  immediately  reemployed. 

The  trial  judge,  having  denied  a  motion  for  nonsuit  made  at  the 
close  of  the  plaintiff's  case,  and  a  motion  for  direction  of  a  verdict 
in  defendants'  favor  made  at  the  close  of  the  whole  case,  submitted 
the  issue  to  the  jury,  with  instructions  to  the  effect  that  if  they 
found  the  plaintiff  had  sustained  damage  from  the  acts  of  the  de- 
fendants in  the  premises,  and  if  the  vigilance  committee  proceeded 
against  the  plaintiff'  without  charges  submitted  in  writing,  without 
notice  to  the  plaintiff,  or  without  fair  trial,  then,  unless  the  plaintiff 
had  waived  his  rights  by  submitting  himself  to  the  jurisdiction  of 
the  vigilance  committee  or  of  the  association,  he  was  entitled  to  re- 
cover to  the  extent  of  the  pecuniary  injury  that  was  the  natural  re- 
sult of  the  action  of  the  defendants.  Other  and  more  questionable 
elements  of  damage  were  included  in  the  instructions,  but  any 
ground  of  complaint  in  this  regard  was  waived  upon  the  argument 
here. 

Reversal  is  asked  upon  only  two  grounds,  both  of  which  are  as- 
sumed to  have  been  raised  in  the  motion  for  nonsuit  and  for  di- 
rection of  a  verdict,  viz. :  First.  That  the  suspension  or  expulsion  of  a 
member  of  a  labor  union  (it  being  a  voluntary,  unincorporated  as- 
sociation) in  cases  where  no  property  right  are  involved,  cannot  sup- 
port a  claim  for  damages  against  the  union  by  the  member  so  ex- 
pelled or  suspended.  And,  secondly,  that  the  plaintiff  had  no  right 
to  complain  of  his  trial  and  consequent  suspension,  and  this  on  the 
ground  that  the  charge  made  by  Trancone  against  him  was  put  in 
writing  and  read  to  the  plaintiff;  that  he  participated  in  the  trial 
before  the  vigilance  committee  and  produced  witnesses  who  testified 
in  his  behalf;  that  he  received  notice  of  the  hearing  before  the  com- 
mittee upon  the  second  day,  at  which  hearing  he  attended,  with  wit- 
nesses, and  was  tried  in  accordance  with  the  rules  and  by-laws  of  the 
association ;  and  that  he  waived  any  formalities  that  may  not  have 
been  strictly  observed  by  failing  to  object  to  the  proceedings  for  ir- 
regularity. 

To  deal  with  the  second  point  first.  [The  court  held  that  the 
subject  matter  of  the  charges  was  within  the  jurisdiction  of  the 
committee,  but  that  there  had  not  been  "  due  notice  "  given,  nor  had 
the  charges  been  submitted  in  writing  as  required  by  the  rules.] 

To  return,  now,  to  the  first  and  main  question  raised  by  the  plain- 
tiffs in  error.    We  think  too  narrow  a  view  is  taken  of  the  plaintiff's 


CHAP.    XI.]  PROCURING   REFUSAL   TO    CONTRACT.  407 

ground  of  action  when  it  is  regarded  as  resting  merely  upon  his 
suspension  from  the  labor  union.  In  our  opinion,  the  gist  of  the 
action  is  the  damage  caused  to  the  plaintiff  by  an  unwarranted  inter- 
ference with  him  in  his  employment  as  a  hatter.  If  the  framer  of 
the  declaration,  instead  of  including  in  that  pleading  averments  re- 
specting the  proceedings  of  the  vigilance  committee  and  of  the  other 
defendants  that  eventuated  in  the  withdrawal  of  the  plaintiff's  mem- 
bership card,  had  contented  himself  with  averring  that  defendants 
had  unlawfully  and  without  just  cause  or  excuse  procured  plaintiffs 
discharge  by  his  employer,  it  would,  as  we  think,  have  set  forth  the 
material  averment  upon  which  his  right  of  action  depends.  Defend- 
ants might  then  have  pleaded  that  liis  discharge  resulted  solely  from 
the  withdrawal  of  his  membership  card,  and  that  this  resulted  from 
his  conviction  of  an  offence  against  the  rules  of  trade,  after  a  fair 
trial  had  upon  charges  submitted  by  a  member  in  writing,  and  on  due 
notice  to  the  plaintiff,  in  accordance  with  the  laws  of  the  association 
of  which  he  was  a  member.  This  course  of  pleading  would  have 
presented  the  so-called  trial  and  conviction  of  the  plaintiff  in  its  true 
light,  as  an  alleged  justification  or  excuse  for  the  action  of  the  de- 
fendants in  procuring  his  dismissal  from  employment.  No  doubt 
plaintiff's  membership  in  the  defendant  association  imports  his  con- 
sent (so  far  as  he  had  lawful  power  to  give  consent)  to  the  discipline 
of  the  association,  if  carried  out  in  good  faith  and  without  malice, 
through  the  methods  prescribed  by  the  laws  of  the  association  and  in 
accordance  with  the  principles  of  natural  justice.  Assuming  the  de- 
fendant association  to  have  been  organized  for  lawful  purposes  only, 
plaintiff  had  lawful  power  to  give  his  consent  to  its  discipline,  to  be 
exercised  in  furtherance  of  such  purposes.  And,  assuming  that  the 
method  adopted  by  the  defendant  association  of  establishing  an 
agreement  with  the  manufacturing  hatters  in  all  the  factories 
throughout  an  extensive  district,  to  the  effect  that  none  but  members 
of  the  association  should  be  employed  in  their  shops,  was  not  un- 
lawful, the  plaintiff  might  assent  that  upon  his  being  in  due  course 
suspended  from  membership  in  the  association,  after  a  proper  convic- 
tion, upon  charges  submitted  and  tried  in  accordance  with  its  rules, 
he  should  lose  his  place  of  employment  and  his  opportunity  of  gain- 
ing other  employment  within  the  district.  We  say  assuming  such  an 
agreement  not  to  be  unlawful,  because  in  our  view  its  lawfulness 
admits  of  question.  In  Curran  v.  Galen,  152  N.  Y.  33,  certain 
brewery  companies  in  the  city  of  Eochester,  having  formed  them- 
selves into  a  brewers'  association,  made  an  agreement  with  a  lalior 
union,  composed  of  workmen  employed  in  the  brewing  business  in  that 
city,  to  the  effect  that  all  employees  of  the  brewery  companies  should 
be  members  of  the  union,  and  that  no  employees  should  work  for  a 
period  longer  than  four  weeks  without  becoming  a  member.  It  was 
held  (as  we  read  the  opinion)  that  the  purpose  of  the  union  that  no 


408  BRENNAN    V.    UNITED    HATTERS.  [CHAP.   XI. 

employee  of  a  brewing  company  should  ])e  allowed  to  work  without 
becoming  a  member  of  the  union,  and  that  the  contract  referred  to 
should  be  availed  of  to  compel  the  discharge  of  an  independent  em- 
ployee, was  in  effect  a  threat  to  keep  persons  from  working  at  the 
particular  trade  and  to  procure  their  dismissal  from  employment ;  and 
that  this  plan  of  compelling  workmen,  not  in  affiliation  with  the 
organization,  to  join  it  at  the  peril  of  being  deprived  of  their  em- 
ployment and  of  the  means  of  making  a  livelihood,  was  unlawful. 
In  the  more  recent  case  of  Jacobs  v.  Cohen,  183  jST.  Y.  207,  a  contract 
between  a  single  firm  of  employers  and  a  labor  union,  whereby  the 
firm  agreed  for  a  certain  period  to  employ  and  retain  only  members 
of  the  union,  and  the  latter  for  the  same  period  bound  themselves 
to  furnish  the  services  of  its  members,  was  held  not  violative  of 
public  policy,  on  the  ground,  among  others  (see  page  211)  that  "its 
restrictions  were  not  of  an  oppressive  nature,  operating  generally  in 
a  community  to  prevent  such  craftsmen  from  obtaining  employment 
and  from  earning  their  livelihood."  Whether  these  decisions  are  con- 
sistent with  each  other  is  a  question  that  may  require  consideration 
at  a  future  time.  At  the  same  time.  Protective  Ass'n  v.  Gumming, 
170  N".  Y.  315,  may  come  under  consideration.  Plant  v.  Woods,  176 
Mass.  492,  Berry  v.  Donovan,  188  Mass.  353,  and  many  of  the  cases 
cited  below,  may  also  throw  light  upon  the  lawfulness  of  such  a  trade 
agreement. 

In  the  present  case,  indeed,  it  is  argued,  and  with  much  force,  by 
the  learned  counsel  for  plaintiffs  in  error,  that  the  value  of  the  right 
of  membership  in  the  defendant  association  consists  in  participation 
in  a  more  or  less  complete  monopoly  of  the  labor  market  in  the  par- 
ticular trade  in  question;  that  so  far  as  labor  unions  are  organized 
for  the  purpose  of  monopolizing  to  their  members  the  labor  market 
in  any  particular  trade,  that  purpose  constitutes  such  unions  unlaw- 
ful associations;  and  that  the  plaintiff's  right  to  retain  employment 
or  to  secure  new  employment  was  so  dependent  upon  his  participation 
in  such  an  unlawful  monopoly  that  his  suit  for  damages  arising  out 
of  a  disturbance  of  this  right  is  not  to  be  sustained.  This  argument 
has  an  odd  sound,  proceeding,  as  it  does,  from  the  labor  organization 
itself;  for  if  the  purposes  of  the  defendant  association,  as  disclosed  in 
the  record  before  us,  be  in  truth  unlawful,  that  circumstance  does 
not,  in  our  view,  tend  to  overthrow  tlie  judgment  under  review.  The 
phiintiff''s  right  of  action,  as  we  regard  it,  does  not  rest  upon  any  as- 
sertion of  the  alleged  monopoly,  but  upon  a  repudiation  of  the  very 
course  of  procedure  that  was  invoked  in  his  case  to  establish  the 
monopoly.  It  is  settled  that,  where  a  party  has  entered  into  an 
agreement  that  is  void  because  contrary  to  public  policy,  his  right  to 
recover  upon  a  ground  of  action  that  exists  independent  of  the  agree- 
ment is  not  overthrown  by  the  operation  of  the  maxim  in  pari  delicto. 
Cone  V.  Kussell,  3  Dick.  Ch.  208,  217,  and  cases  cited;   Easton  Na- 


CHAP.    XI.]  PROCURING   REFUSAL   TO    CONTRACT.  409 

tional  Bank  v.  American  Brick  &  Tile  Co.  (Green's  Appeals)  64  Atl. 
917,  decided  by  this  court  in  June  last.  See  also,  Delaware,  Lack.  & 
Western  E.  R.  Co.  v.  Trautwein,  23  Vroom.  1G9,  Newbury  v.  Luke, 
39  Id.  189.  But  the  question  thus  argued  by  counsel  for  plaintiffs 
in  error  does  not,  as  we  take  it,  press  for  determination  in  this  case. 
Had  plaintiff's  discharge  from  employment  resulted  from  a  due 
course  of  procedure  had  against  him  in  the  association,  in  accordance 
with  the  by-laws  to  which  he  had  given  his  consent,  and  had  such 
procedure  been  set  up  as  a  justification  or  excuse  for  those  who  pro- 
cured his  discharge,  he  might  have  raised  the  question  of  the  unlaw- 
fulness of  the  trade  agreement  with  the  manufacturing  hatters,  in 
order  to  show  that  the  alleged  excuse  or  justification  was  not  a  lawful 
one.  But  since,  upon  the  record  before  us,  it  must  be  held  that  plain- 
tiff's suspension  from  the  association  and  the  consequent  withdrawal 
of  his  membership  card  were  not  warranted  by  the  laws  of  the  asso- 
ciation, because  the  tribunal  that  tried  him  acted  without  jurisdiction, 
it  is  unnecessary  to  pursue  the  inquiry  whether  the  defendant  asso- 
ciation, by  establishing  a  trade  agreement  that  tended  to  promote  a 
monopoly  and  to  deprive  w^orkmen  in  the  hatter's  craft  of  a  fair 
opportunity  to  obtain  employment,  had  violated  the  law  or  the  public 
policy  of  this  state. 

Stripped,  therefore,  of  all  redundant  matters,  the  question  pre- 
sented is  whether  the  acts  of  the  defendants,  including  the  un- 
warranted conviction  of  the  plaintiff  by  the  vigilance  committee,  their 
sentence  that  he  should  pay  a  money  fine  and  give  up  for  one  year 
his  position  as  foreman  in  the  Connett  factory,  the  ratification  of 
this  conviction  and  sentence  by  the  defendant  association,  and  the 
consequent  withdrawal  of  plaintiff's  membership  card  from  the  stew- 
ard at  the  factory,  when  the  natural  and  proximate  result  of  that 
course  of  action,  intended  and  designed  by  the  defendants  to  ensue, 
was  to  interfere  with  the  plaintiff's  continued  employment  in  the 
factory,  and  thereby  prevent  him  from  gaining  a  livelihood  for 
himself  and  his  family,  followed  by  actual  damage  accruing  to  the 
plaintiff  in  the  premises,  constitute  an  actionable  injury.  We  say 
that  the  natural  and  proximate  result  of  withdrawing  the  plaintiff's 
membership  card  was  his  dismissal  from  the  factory,  because  such 
was  not  only  a  reasonable  inference  to  be  drawn  by  the  jury  from 
the  evidence,  but,  indeed,  was  the  only  reasonable  inference.  Upon 
the  evidence,  the  membership  card  was  the  token,  and  the  only  token, 
that  manifested  plaintiff's  right  to  continued  employment  in  the 
factory  under  the  trade  agreement  already  referred  to.  That  agree- 
ment was  not  of  itself  the  proximate  cause  of  his  dismissal,  but  merely 
produced  the  condition  under  which  the  withdrawal  of  the  card  be- 
came effective  in  procuring  his  dismissal.  The  evidence  is  clear  that 
it  was  because  of  the  withdrawal  of  the  card,  and  for  that  reason  only, 
that  the  superintendent  of  the  factory  discharged  the  plaintiff,  and 


410  BRENNAISr    V.    UNITED    HATTERS.  [CII.^J'.    XI. 

that  his  refusal  to  do  so  would  at  once  have  put  the  factory  out  of 
business  by  the  refusal  of  all  the  other  men  to  continue  at  work.  We 
say,  also,  that  the  plaintiff's  discharge  was  intended  and  designed  by 
the  defendants  to  ensue.  It  is  true  that  the  immediate  occasion  of 
the  withdrawal  of  the  card  was  plaintiff's  refusal  to  pay  the  fine. 
But,  that  fine  having  been  unwarrantably  imposed  upon  him,  he,  of 
course,  was  justified  in  refusing  to  pay  it.  And  since  the  defendants 
were  charged  with  notice  of  the  facts  that  show  the  fine  was  un- 
warranted, they  were  not  entitled  to  anticipate  that  the  plaintiff  would 
submit  to  pay  it.  Moreover,  a  part  of  the  penalty  imposed,  in  addi- 
tion to  the  fine,  was  that  plaintiff  should  give  up  for  one  year 
his  place  as  foreman  in  the  factory.  Defendants  had  no  right  to  as- 
sume that  plaintiff  would  be  willing  to  continue  in  any  other  grade 
of  employment,  nor  that  the  Messrs.  Connett  would  give  him  other 
employment,  if  the  plaintiff  were  willing  to  accept  it. 

In  dealing  Avith  the  question  of  the  plaintiff's  right  to  recover,  it 
is  to  be  observed  that  the  action  taken  by  the  defendants  was  not  in  the 
course  of  any  legitimate  competition  for  the  place  held  by  the  plain- 
tiff in  the  factory,  but  was  taken  in  order  to  discipline  and  punish 
him  for  an  offence  of  which  he  was  presumably  innocent,  and  of  which 
he  had  not  been  duly  found  guilty.  The  common  law  has  long  recog- 
nized as  a  part  of  the  boasted  liberty  of  the  citizen  the  right  of  every 
man  to  freely  engage  in  such  lawful  business  or  occupation  as  he 
himself  may  choose,  free  from  hindrance  or  obstruction  by  his  fellow 
men,  saving  such  as  may  result  from  the  exercise  of  equal  or  superior 
rights  on  their  part  —  such,  for  instance,  as  the  right  of  fair  competi- 
tion in  the  like  field  of  human  effort  —  and  saving,  of  course,  such 
other  hindrance  or  obstruction  as  may  be  legally  excused  or  justified. 
This  right  is  declared  by  our  Constitution  to  be  unalienable.  The 
first  section  of  the  Bill  of  Rights  sets  forth  that  "all  men  are  by 
nature  free  and  independent,  and  have  certain  natural  and  unalien- 
able rights,  among  which  are  those  of  enjoying  and  defending  life 
and  liberty,  acquiring,  possessing  and  protecting  property,  and  of 
pursuing  and  obtaining  safety  and  happiness."  As  a  part  of  the 
right  of  acquiring  property  there  resides  in  every  man  the  right  of 
making  contracts  for  tlie  purchase  and  sale  of  property,  and  con- 
tracts for  personal  services  which  amount  to  the  purchase  and  sale 
of  labor.  It  makes  little  difference  whether  the  right  that  underlies 
contracts  of  the  latter  sort  is  called  a  personal  right  or  a  property 
right.  It  seems  to  us  impossi1)le  to  draw  a  distinction  between  a 
riglit  of  property  and  a  right  of  acquiring  property  that  will  make  a 
disturljance  of  the  latter  right  any  less  actionable  than  a  disturbance 
of  the  former.  In  a  civilized  community  which  recognizes  the  right 
of  private  property  among  its  institutions,  the  notion  is  intolerable 
tliat  a  man  should  l)e  protect(>d  by  tlie  law  in  the  enjoyment  of  prop- 
erty once  it  is  acquired,  l)ut  left  unprc^tcctcd  by  the  law  in  his  efforts 


CHAP.    XI.]  PEOCURING   REFUSAL   TO    CONTRACT.  411 

to  acquire  it.  The  cup  of  Tantalus  would  be  a  fitting  symbol  for 
such  a  mockery.     Our  Constitution  recognizes  no  such  notion. 

Actions  like  the  present,  although  they  have  been  treated  by  some 
judges  in  recent  years  as  a  comparative  novelty,  do  not,  in  our  opinion, 
rest  upon  any  novel  principle.  They  are  essentially  analogous  to 
the  familiar  action  for  enticing  away  one's  servant.  In  such  cases, 
as  was  said  by  Justice  Van  Syckel,  in  Noice,  Adm'x  v.  Brown,  10 
Vroom,  573 :  "  It  is  well  settled  that  a  person  who,  knowing  the  prem- 
ises, induces  another  to  break  a  subsisting  contract  of  service,  is  liable 
to  an  action  for  the  damages  which  ensue  to  the  employer.  Whether 
an  action  will  lie  when  there  is  no  binding  contract  to  continue  in 
service  is  perhaps  not  so  clear;  but  I  think  it  may  be  maintained, 
both  upon  reason  and  authority,  where  it  is  merely  a  subsisting  serv- 
ice at  will.  In  such  service,  like  a  tenancy  at  will,  their  relation 
must  be  ended  in  some  way  before' the  rights  of  the  master  can  be 
lost.  By  the  unwarrantable  interference  of  a  third  party  the  em- 
ployer is  deprived  of  what  he  otherwise  might  have  retained."  .  .  . 
[The  court  cited  Hughes  v.  McDonough,  43  N.  J.  L.  460,  and  pro- 
ceeded :]  Among  the  illustrative  -eases  cited  is  Keeble  v.  Hetherin- 
gill,  11  East,  574n,  the  famous  "decoy  case."  In  Van  Horn  v.  Van 
Horn,  27  Vroom,  318,  this  court  sustained  an  action  against  a 
single  defendant  for  injuring  the  plaintiff's  business  by  false  and 
malicious  statements  concerning  his  character.  Many  English  cases 
were  cited,  among  them  Luniley  v.  Gye,  2  El.  &  B.  21G,^  and  Bowen 
V.  Hall,  L.  R.  6  Q.  B.  Div.  333 ;  also  the  Massachusetts  case  of 
Walker  v.  Cronin,  107  Mass.  555.  Justice  Van  Syckel  said  that  "  the 
rule  to  be  deduced  from  the  cases  is  that,  while  a  trader  may  law- 
fully engage  in  the  sharpest  competition  with  those  in  the  like  busi- 
ness, by  representing  his  own  wares  to  be  better,  .  .  .  yet,  when  he 
oversteps  that  line,  and  commits  an  act  with  the  malicious  intent 
of  inflicting  injury  upon  his  rival's  business,  his  conduct  is  illegal, 
and  if  damage  results  the  injured  party  is  entitled  to  redress.  Nor 
does  it  matter  whether  the  wrongdoer  effects  his  object  by  persuasion 
or  by  false  representation.  The  courts  look  through  the  instrumen- 
tality or  means  used  to  the  wrong  perpetrated  with  a  malicious  in- 
tent, and  base  the  right  of  action  upon  that."  Our  Court  of  Chan- 
cery, in  Barr  v.  Essex  Trades  Council,  8  Dick.  Ch.  101,  115,  Frank 
and  Dugan  v.  Harold,  18  Id.  443,  and  Jersey  City  Printing  Co.  v. 
Cassidy,  Id.  759,  has  affirmed  the  right  of  the  citizen  to  conduct  his 
business  free  from  malicious  interference,  including  his  right  to  have 
free  opportunity  to  hire  employees.  And  we  may  remark  that  the 
right  of  one  seeking  employment  to  have  free  opportunity  to  gain 
employment,  and  to  retain  a  position  of  employment  once  it  is  gained, 
is  as  precious  in  the  eye  of  the  law  as  the  right  of  the  employer. 

The  above  cases  illustrate  the  views  that  our  courts  have  taken 

1  Ante,  p.  329. 


412  BRENNAN    V.    UNITED   HATTERS.  [CIIAP.    XI. 

of  cognate  questions.  We  recall  no  case  in  this  state  that  is  precisely 
in  point  with  the  present.  In  examining  reported  decisions  in  other 
jurisdictions,  we  frequently  find  the  question  of  malice  discussed  — 
malice  being  commonly  treated  as  an  essential  ingredient  of  an  ac- 
tion like  the  present.  But  malice  in  the  law  means  nothing  more 
than  the  intentional  doing  of  a  wrongful  act  without  justification  or 
excuse.^  King  v.  Patterson,  20  Vroom,  417;  McFadden  v.  Lane,  43 
Id.  624,  630.  And  what  is  a  wrongful  act,  within  the  meaning  of 
this  definition?  We  answer,  any  act  which  in  the  ordinary  course 
will  infringe  upon  the  rights  of  another  to  his  damage  is  wrongful, 
except  it  be  done  in  the  exercise  of  an  equal  or  superior  right.  In 
Mogul  Steamship  Co.  v.  McGregor,  23  Q.  B.  Div.  598,  613,^  Lord 
Justice  Bowen  said :  "  Now,  intentionally  to  do  that  which  is  cal- 
culated in  the  ordinary  course  of  events  to  damage,  and  which  does 
in  fact  damage  another  in  that  other  person's  property  or  estate,  is 
actionable,  if  done  without  just  cause  or  excuse.  Such  intentional 
action,  when  done  without  just  cause  or  excuse,  is  what  the  law  calls 
a  malicious  wrong."  This  statement  was  cited  with  approval  by 
Green,  V.  C,  in  Barr  v.  Essex  Trades  Council,  8  Dick.  Ch.  101,  117. 
In  our  opinion  it  is  a  correct  statement  of  the  law  and  is  as  applicable 
to  acts  affecting  a  man's  right  to  secure  and  retain  employment  as 
to  his  right  to  acquire  and  retain  property  or  trade.  In  Walker  v. 
Cronin,  107  Mass.  555,  the  declaration  averred  that  the  plaintiff  was 
a  manufacturer  of  shoes,  and  for  the  prosecution  of  his  business  it 
was  necessary  for  him  to  employ  many  shoemakers,  and  the  de- 
fendant, knowing  this,  unlawfully  and  without  justifiable  cause,  mo- 
lested him  in  carrying  on  said  business  with  the  unlawful  purpose  of 
preventing  him  from  carrying  it  on,  and  wilfully  induced  many  shoe- 
makers who  were  in  his  employ,  and  others  who  were  about  to  enter 
into  it,  to  abandon  it  without  his  consent  and  against  his  will,  whereby 
the  plaintiff  lost  their  services  and  the  profits  that  he  would  other- 
wise derive  therefrom,  and  was  put  to  expense  to  procure  other 
workmen.  The  court  sustained  the  right  of  action.  See  also,  Martell 
V.  White,  185  Mass.  255,  and  Berry  v.  Donovan,  188  Mass.  353,  two 
recent  and  instructive  cases.  A  very  recent  Connecticut  decision  may 
also  be  noted,  ^farch  v.  Bricklayers'  and  Plasterers'  Union,  63  Atl. 
291.  [Tlic  court  discussed  Bowen  v.  Plall,  6  Q.  B.  D.  833  and  Teni- 
perton  v.  Russell,  [1893],  1  Q.  B.  715,  and  proceeded:]  The  celebrated 
case  of  Allen  v.  Flood,  [1898]  A.  C.  1  is  cited  by  tlie  learned  counsel 
for  plaintiffs  in  error  herein.  [The  court  discussed  Allen  v.  Flood 
at  length,  and  continued:] 

If  we  have  correctly  apprehended  the  essential  grounds  upon 
which  proceeded  the  judgment  of  the  majority  of  the  House  of 
Lords  in  this  case,  the  decision  is  not  antagonistic  to  the  plaintiff's 

'  I.  e.  In  t)ilH  <'l(i8H  of  cases. 
'  Ante,  |).  .I'M). 


CHAP.    XI.]  PROCUUING   REFUSAL   TO    CONTRACT.  413 

right  of  action  in  the  present  instance.  It  seems  to  have  been 
held  that  Allen's  conduct  amounted  to  no  more  than  legitimate 
persuasion;  that  he  violated  no  legal  right  of  Flood  and  Taylor, 
did  no  unlawful  act,  and  used  no  unlawful  means  in  procuring 
their  dismissal;  and  that  his  conduct  was  therefore  not  action- 
able, however  malicious  or  bad  his  motive  might  be.  Such,  indeed, 
is  the  abstract  of  the  decision  as  contained  in  the  syllabus.  In  the 
case  before  us,  however,  the  defendants  were  not  acting  witliin 
their  legal  rights,  because,  as  already  appears,  even  if  the  general 
object  of  the  defendant  association  in  respect  of  controlling  the 
hatters'  trade  in  the  district  covered  by  their  operations  be  assumed 
to  be  lawful,  yet  their  interference  with  the  plaintiff  in  his  occupa- 
tion, in  the  manner  in  which  they  did  interfere,  was  to  be  justified 
only  in  the  event  that  plaintiff  was  first  duly  convicted  and  sentenced 
in  accordance  with  the  procedure  prescribed  by  the  laws  of  the  de- 
fendant association,  and  this  had  not  been  done.  No  doubt,  how- 
ever, there  is  much  in  the  reasoning  of  the  lords  who  voted  for  re- 
versal in  Allen  v.  Flood  that,  if  accepted,  would  tend  to  negative  a 
right  of  action  in  the  present  case.  Time  will  not  admit  of  an  ex- 
haustive review  of  that  reasoning.  We  content  ourselves  with  saying 
that  it  does  not  commend  itself  to  us.  We  cannot  agree  that  no 
legal  right  of  Flood  and  Taylor  was  interfered  with,  because  they  had 
no  legal  right  to  insist  upon  their  continued  employment  with  the 
Glengall  Company.  They  were  none  the  less  entitled  to  the  reason- 
able expectation  that  their  employment  would  continue,  and  it  did 
not  lie. in  the  mouth  of  one  who,  without  warrant,  had  interfered  with 
their  status  as  employees  to  say  that,  if  he  had  not  done  so,  their 
employer  might  have  terminated  the  status  of  his  own  accord.  Nor 
can  we  agree  that  Allen  was  acting  in  the  exercise  of  any  absolute 
right.  His  rights,  like  all  personal  rights  that  are  to  be  enjoyed  in 
a  state  of  society,  were  qualified  to  a  material  extent  when  they  came 
into  conflict  with  the  rights  of  others.  Without  reviewing  the  elab- 
orate opinions,  it  is  sufficient  to  say  that  the  general  course  of  reason- 
ing of  those  judges  and  lords  who  maintain  the  right  of  action  is, 
to  our  minds,  the  more  satisfactory. 

Allen  V.  Flood  is  practically  overruled  by  the  decision  of  the  House 
of  Lords  in  Quinn  v.  Leathem,  [1901],  A.  C.  495,^  where  it  was  held 
that  a  combination  of  two  or  more,  without  justification  or  excuse, 
to  injure  a  man  in  his  trade  by  enticing  his  customers  or  servants  to 
break  their  contracts  with  liim  or  not  to  deal  with  him  or  continue 
in  his  employment,  is  actionable,  if  it  results  in  damage  to  him.  And 
a  subsequent  decision  in  the  Court  of  Appeal  is  to  the  same  effect. 
Giblan  v.  Nat.  Amalgamated  Union,  [1903],  K.  B.  600.  These  two 
cases  are  clear  authorities  for  the  present  action.  The  latter  case 
is  quite  in  point.     Giblan  was  a  member  of  the  union,  and  was  in- 

lAnte,  p.  362. 


414  BRENNAN   V.   UNITED   HATTEES.  [CHAP.   XI. 

debted  to  it  in  a  considerable  sum  for  moneys  that  had  been  intrusted 
to  him  as  treasurer  of  one  of  its  branches.  In  order  to  compel  him 
to  pay  this  money,  the  union,  through  two  of  its  officers  (whose  acts 
were  afterwards  approved  by  the  union),  undertook  to  prevent,  and 
did  prevent,  plaintiff  from  getting  or  retaining  employment,  by 
calling  out  or  threatening  to  call  out  the  men.  It  was  held  that  the 
union  and  its  officers  were  liable  in  damages  for  interfering  with 
Giblan  in  the  exercise  of  his  common-law  right  to  dispose  of  his 
labor  according  to  his  will,  and  that  their  action  was  not  justified 
by  the  fact  that  it  was  taken  for  the  purpose  of  compelling  him  to 
make  good  his  defalcation.  Upon  both  reason  and  authority,  there- 
fore, we  are  of  the  opinion  that  the  acts  of  the  defendants  herein,  as 
above  recounted,  amounted  to  an  unwarranted  interference  with  the 
plaintiff  in  his  trade  as  a  hatter;  and,  he  having  sustained  damage 
as  a  result  thereof  in  losing  his  place  of  employment,  the  present 
action  is  sustainable. 

The  judgment  under  review  will  he  affirmed,  with  costs. 
For  reversal  —  Green. 


CHAP.    XII.]  SLANDER   AND   LIBEL.  4iO 


CHAPTER    XII. 

SLANDER    AND    LIBEL. 

COOPER  V.  GREELEY. 
Supreme  Court  of  New  York,  July,  1845.     1  Den.  347. 

Demurrer  to  picas,  in  an  action  for  libel.  The  declaration,  after 
che  usual  introductory  matter,  alleged  in  the  first  count,  the  pub- 
lication by  the  defendants  in  the  New  York  Tribune,  of  a  certain 
false  and  malicious  libel  of  and  concerning  the  plaintiff,  containing 
(inter  alia)  the  following  matter,  which  is  set  out  with  innuendoes, 
applying  it  to  the  plaintiff. 

"...  He  chooses  to  send  none,  but  a  suit  for  libel  instead.  .  .  . 
There  is  one  comfort  to  sustain  us  under  this  terrible  dispensation. 
Mr.  Cooper  will  have  to  bring  his  action  to  trial  somewhere.  He  will 
not  like  to  bring  it  in  New  York,  for  we  are  known  here,  nor  in 
Otsego,  for  he  is  known  there."  Kn  innuendo  followed,  averring  the 
meaning  to  be  that  the  plaintiff,  in  consequence  of  being  known  in 
the  county  of  Otsego,  was  in  bad  repute  there,  and  would  not  for 
that  reason,  like  to  bring  a  suit  for  libel  in  that  county.  The  second 
count  averred  publication  by  the  defendants  of  another  alleged  libel. 
The  defendants,  besides  the  general  issue,  pleaded  several  special  pleas. 
The  plaintiff  demurred  to  each  of  the  special  pleas,  and  the  de- 
fendants joined  in  demurrer. 

Jewett,  J.  The  first  question  presented  is  whether  the  first  count 
of  the  declaration  is  good  in  substance.  If  not,  it  follows  that  the 
pleas  interposed  to  that  count  need  not  be  examined  for  the  purpose 
of  giving  judgment  on  the  demurrer;  the  rule  being  that  where  the 
count  is  so  defective  that  a  verdict  will  not  cure  it,  the  defendant  on 
demurrer  to  his  plea  may  fall  back  upon  the  count.  Miller  v.  Max- 
well, 16  Wend.  9.  The  defendants  contend  that  the  publication  set 
forth  in  this  count  is  not  libellous.  For  the  plaintiff  it  is  insisted 
that  it  contains  a  charge  that  he  was  in  bad  repute  in  the  county 
of  Otsego,  in  consequence  of  being  known  in  that  county;  and  that 
on  that  account  he  would  not  like  to  bring  a  libel  suit  to  trial  there. 
The  inquiry  is,  how  is  this  publication  to  be  understood?  It  is  the 
duty  of  the  court,  in  an  action  for  a  libel,  to  understand  the  pub- 
lication in  the  same  manner  as  others  would  naturally  do.  "  The 
construction  which  it  behooves  a  court  of  justice  to  put  on  a  publica- 
tion which  is  alleged  to  be  libellous  is  to  be  derived  as  well  from 
the  expressions  used  as  from  the  whole  scope  and  apparent  object 


4t6  COOPER  V.    GREELEY.  [CHAP.  XII. 

of  the  writer."  Spencer  v.  Southwick,  11  John.  E.  592,  per  Van 
Buren,  Senator;  see  also  Fidler  v.  Delavan,  20  Wend.  57.  It  seems  to 
me  that  the  innuendo  affixes  the  true  meaning  to  the  words.  It  may 
be  admitted  that  the  charge  is  not  made  in  an  open  and  direct  man- 
ner. It  seems  to  be  ironical.  But  an  imputation  conveyed  in  that 
form  is  not  the  less  actionable.  The  sting  of  the  words  in  this  case 
is  in  the  imputation  which  it  is  alleged  they  convey,  that  the  plaintiff 
had  acquired  so  odious  a  reputation  in  Otsego  county  that,  knowing 
enough  of  the  influence  of  human  action  justly  to  apprehend  danger 
to  himself  for  that  cause  upon  such  a  trial  there,  he  would  not  dare 
to  risk  a  trial  in  that  county.  Assuming  this  to  be  the  true  mean- 
ing of  the  publication,  the  inquiry  follows  —  whether  such  language 
with  such  meaning  and  application  is  libellous  within  the  rules  of 
law  applicable  to  the  action  for  libel.  The  counsel  for  the  defendants, 
although  they  did  not  admit  on  the  argument  that  even  such  lan- 
guage could  be  considered  libellous  within  their  understanding  of 
what  they  denominated  the  modern  definition  of  libel,  yet  undertook 
to  show  by  argument  and  authority  that  at  the  period  when  the  late 
Chancellor  Kent,  and  Chief  Justice  Spencer,  and  their  associates, 
held  seats  in  this  court,  the  rule  in  regard  to  what  published  words 
amounted  to  a  libel  was,  more  than  forty  years  ago,  greatly  and 
unjustly  extended.  The  definition  of  a  libel  submitted  arguendo  by 
the  late  General  Hamilton,  and  adopted  by  the  court  in  The  People  v. 
Croswell,  3  John.  Cas.  354,  and  subsequently  approved  of  by  the  court 
in  Steele  v.  Southwick,  9  John.  E.  215,  is  complained  of  as  errone- 
ous. The  court  in  the  case  last  cited  said  that  "  a  writing  published 
maliciously  with  a  view  to  expose  a  person  to  contempt  and  ridicule  is 
undoubtedly  actionable ;  and  what  was  said  to  this  efl^ect  by  the  judges 
of  the  C.  B.  in  Villers  v.  IMonsley,  2  Wils.  403,  is  founded  in  law, 
justice  and  sound  policy.  The  opinion  of  the  court  in  the  case  of 
Eiggs  V.  Denniston,  3  John.  Cas.  205,  was  to  the  same  effect;  and 
the  definition  of  a  libel  as  given  by  Mr.  Hamilton  in  the  case  of  The 
People  V.  Croswell,  3  John.  Cas.  354,  is  drawn  with  the  utmost  pre- 
cision. It  is  a  censorious  or  ridiculing  writing,  picture,  or  sign,  made 
with  a  mischievous  and  malicious  intent  towards  government,  magis- 
trates, or  individuals.  To  allow  the  press  to  be  the  vehicle  of  mali- 
cious ridicule  of  private  character,  would  soon  deprave  the  moral 
taste  of  the  community,  and  render  the  state  of  society  miserable 
and  barbarous."  In  the  case  of  Cropp  v.  Tilney,  3  Salk.  226,  Holt 
Ch.  J.  said,  "  scandalous  matter  is  not  necessary  to  make  a  libel.  It 
is  enough  if  the  defendant  iiuliiccs  an  ill  opinion  to  be  hold  of  the 
plaintiff,  or  to  make  him  contemptible,  or  ridiculous."  Any  written 
slander,  though  merely  tending  to  render  the  party  subject  to  dis- 
grace, ridicule,  or  conlempt,  is  actionable,  though  it  do  not  impute 
any  definite  crime  punishable  in  the  temporal  courts.  3  Bl.  Comm. 
Chitty's  ed.  123,  note  5. 


CHAP.    XII.]  SLANDER   AND    LIBEL.  417 

But  it  is  argued  that  the  publication  in  question  is  not  libellous, 
even  admitting  the  definition  of  libel  adopted  by  this  court  in  The 
People  V.  Croswell  and  in  Steele  v.  Southwick.     It  is  denied  that  it 
is  a  censorious  or  a  ridiculing  writing;  and  although  it  is  conceded 
that  it  reflects  upon  the  plaintiff,  it  is  said  that  it  does  not  do  so  in  a 
severe  or  censorious  manner;  and  that  it  does  not  convey  any  senti- 
ment or  ridicule.     The  admission  that  the  publication  reflects  upon 
the  plaintiff,  though  qualified  by  the  remark  that  it  does  not  do  so 
severely,  yields  the  material  point  in  controversy.     The  degree  of 
censure  or  ridicule  does  not  enter  into  the  definition.    "  A  censorious 
or  ridiculing  writing  towards  an  individual "  is  defined  to  be  a  libel, 
"  if  made  with  a  mischievous  and  malicious  intent."     "  Censorious- 
ness  "  is  defined  by  Webster  to  be  a  "  disposition  to  blame  and  con- 
demn —  the  habit  of  censuring  or  reproaching."    He  defines  the  word 
"  reflect,"  in  his  fifth   subdivision,  thus :   "  to  bring  reproach ;    to 
reflect  on ;  to  cast  censure  or  reproach."  '  It  would  seem  to  me  that 
if  a  censorious  writing  made  with  a  mischievous  and  malicious  intent 
towards  an  individual  is  libellous,  a  writing  made  with  a  like  intent 
reflecting  upon  an  individual,  whether  more  or  less  severely,  would 
be  none  the  less  libellous.     But  I  do  not  think  that  the  rule  requires 
any  such  aid.     It  is  enough  that  we  approve  of  the  rule  as  settled, 
acted  upon  and  undeviatingly  adhered  to  by  this  court  for  about  forty 
years.     The  objection  that  the  innuendo  is  not  justified  by  the  lan- 
guage of  the  publication  is  one  which  can  only  be  reached  by  special 
demurrer.    The  office  of  an  innuendo  is  to  apply  the  libel  to  the  pre- 
cedent matter;  and  it  cannot  be  used  to  add  to,  enlarge,  extend  or 
change  the  sense  of  the  previous  words;    and  where  the  new  matter 
stated  in  the  innuendo  is  not  necessary  to  support  the  action,  it  may 
be  rejected  as  surplusage.     1  Chit.  PI.  Day's  ed.  383;  2  Dane's  Ab. 
596;    Thomas  v.  Croswell,  7  John.  K.  270;    Koberts  v.  Camden,  9 
East.  93.     An  innuendo  may  explain  the  meaning  of  words,  though 
it  cannot  enlarge  it  without  the  aid  of  a  colloquium;   and  a  leading 
case  on  this  point  is  where,  in  an  action  for  slander,  the  words  were, 
"  He  has  burnt  my  barn,"  and  it  was  held  that  the  plaintiff  could  not 
say  by  way  of  innuendo,  "  my  barn  full  of  corn."    But  if  the  introduc- 
tion to  the  count  in  the  case  had  contained  an  averment  that  the 
defendant  had  a  barn  full  of  corn,  and  that  in  a  discourse  about  it 
he  spoke  the  words  —  then  an  innuendo  stating  the  meaning  of  the 
words  to  be  "  a  barn  full  of  corn  "  would  have  been  good.     In  such 
a  case  the  innuendo  would  explain  and  apply  the  preceding  parts  of 
the  declaration,  by  showing  that  the  defendant's  words  were  uttered 
in  a  conversation  about  a  barn  of  the  defendant's  which  was  full  of 
corn.     In  Van  Vechten  v.  Hopkins,  5  John.  E.  220,  Van  Ness,  J., 
explains  the  meaning  of  an  averment,   of  a  colloquium   and  of  an 
innuendo.     An  averment  is  to  ascertain  to  the  court  that  which  is 
doubtfully  expressed,   and  to  add  matter  to  make  doubtful  things 


418  COOPEB  V.    GREELEY.  [CHAP.  XII. 

clear.  A  colloquium  shows  that  the  words  were  spoken  in  relation 
to  the  matter  of  the  averment,  and  an  innuendo  is  explanatory  of  the 
subject-matter  sufficiently  expressed  before.  The  colloquium  in  this 
count  was  for  the  purpose  of  showing  that  the  libel  was  published, 
as  it  is  expressly  alleged  to  have  been,  "  of  and  concerning  the  plain- 
tiff." An  innuendo  is  an  averment  that  such  a  one  means  such  a  par- 
ticular person  or  that  such  a  thing  means  such  a  particular  thing; 
and  with  the  introductory  matter  it  forms  a  connected  proposition 
by  which  the  cognizance  of  the  charge  will  be  submitted  to  the 
jury,  and  the  cause  of  action  appear  to  the  court.  The  innuendo 
in  this  case,  which  states  the  meaning  of  the  publication  to  be  that 
the  plaintiff,  in  consequence  of  being  known  in  the  county  of  Otsego, 
was  in  bad  repute  there,  and  would  not  for  that  reason  like  to  bring 
a  suit  for  a  libel  in  that  county,  appears  to  me  to  express  the  true 
meaning  of  the  publication.  The  question  whether  the  alleged  libel 
was  published  of  and  concerning  the  plaintiff,  and  whether  the  true 
meaning  of  the  words  is  such  as  is  alleged  in  the  innuendo  or  not,  is 
a  question  of  fact  which  belongs  to  the  jury  and  not  to  the  court  to 
determine.  Van  Vechten  v.  Hopkins,  5  John.  K.  221;  Goodrich  v. 
Woolcot,  3  Cowen,  231;  Peake  v.  Oldham,^  Cowp.  275;  2  BI.  E.  961; 
Dexter  v.  Taber,  12  John.  E.  239.  It  is  well  settled  that  where  the 
slanderous  charge  may  be  collected  from  the  words  themselves  or 
from  the  general  scope  of  the  publication,  it  is  not  necessary  to  make 
any  averment  as  to  circumstances  to  the  supposed  existence  of  which 
the  words  refer.  So  where  the  libellous  meaning  is  apparent  on  the 
face  of  the  declaration,  innuendoes  and  averments  are  unnecessary; 
but  if  introduced  and  not  warranted  by  the  subject-matter,  they  may 
be  rejected  as  surplusage.  Croswell  v.  Weed,  25  Wend.  621.  The 
proposition  of  the  defendant's  counsel,  that  to  render  a  publication 
actionable  it  must  impute  a  crime,  cannot  be  sustained.  This  rule 
has  never  been  extended  to  libels  in  this  state,  nor  has  it  been  in 
England  for  the  last  one  hundred  and  fifty  years.  The  first  action 
for  a  libel  found  in  our  books  of  reports  is  that  of  Eiggs  v.  Dennis- 
ton,  before  cited,  which  was  decided  in  1802.  The  late  Chancellor, 
(then  Mr.  Justice  Kent,)  in  delivering  the  opinion  of  this  court, 
observed  that  the  charges  against  the  plaintiff  were  clearly  libellous, 
because  they  threw  contumely  and  contempt  upon  him  in  his  char- 
acter as  a  commissioner  of  bankruptcy  —  instead  of  holding  them 
actionable  as  subjecting  the  plaintiff  to  the  loss  of  his  office.  And 
such  has  been  the  doctrine  of  tliis  court  from  that  time  to  the  pres- 
ent. In  Van  Ness  v.  Hamilton,  before  cited.  Chief  Justice  Spencer 
said :  "  It  may  however  be  observed  in  the  outset,  tliat  tliere  exists  a 
decided  distinction  between  words  spoken,  and  written  slander.  To 
maintain  an  action  for  the  former  cause,  the  words  must  either  have 
produced  a  temporal  loss  to  the  plaintiff,  by  reason  of  special  dam- 

»  PoHt,  p.  425. 


CHAP.    XII.]  SLANDER   AND    LIBEL.  419 

age  sustained  from  their  being  spoken,  or  they  must  convey  a  charge 
of  some  act  criminal  in  itself  and  indictable  as  such,  and  subjecting 
the  party  to  an  infamous  punishment,  or  they  must  impute  some 
indictable  offence  involving  moral  turpitude.  To  maintain  an  action 
for  a  libel,  it  is  not  necessary  that  an  indictable  offence  should  be 
imputed  to  the  plaintiff'.  If  a  libel  holds  a  party  up  to  public  scorn, 
contempt  and  ridicule,  it  is  actionable."  It  is  insisted  by  the  defend- 
ants' counsel,  that  in  the  early  stages  of  the  law  of  libel,  there  was  no 
distinction  between  written  and  verbal  slander,  and  that  no  action 
could  then  have  been  maintained  for  any  words  written  for  which 
an  action  could  not  be  maintained  if  they  were  spoken.  The  case 
of  Thorley  v.  Lord  Kerry,  4  Taunt.  355,^  decided  in  the  exchequer 
chamber  in  1812,  is,  among  other  cases,  relied  on  to  sustain  that  posi- 
tion. That  was  an  action  for  a  libel  charging  the  plaintiff  with 
being  a  hypocrite,  and  with  having  used  the  cloak  of  religion  for  un- 
worthy purposes.  The  plaintiff  obtained  a  verdict  and  had  judgment 
in  the  king's  bench  without  argument,  which  was  affirmed  in  the 
exchequer  chamber  upon  error  brought  by  the  defendant.  Sir  J. 
Mansfield,  C.  J.,  in  delivering  the  opinion  of  the  court,  stated  that 
the  words,  had  they  merely  been  spoken,  would  not  have  been  action- 
able; and  while  he  disapproved  of  the  distinction  which  he  admitted 
had  prevailed  for  more  than  a  century  past  between  written  and 
spoken  scandal,  he  said  that  as  the  rule  and  distinction  had  been  so 
firmly  established  by  some  of  the  greatest  names  known  to  the  law, 
and  from  a  time  at  least  as  far  back  as  the  time  of  Charles  the  Sec- 
ond, he  could  not  venture  to  lay  down  at  that  day  that  no  action  could 
be  maintained  for  any  words  written  for  which  an  action  could  not 
be  maintained  if  they  were  spoken.  The  rule  is  repeated  in  Starkie 
on  Slander,  1  vol.  by  "Wendell,  p.  169.  After  a  review  of  all  the 
cases  on  the  subject,  this  writer  says :  "  Upon  the  whole  it  may  be 
collected  that  any  writings,  pictures  or  signs,  which  derogate  from 
the  character  of  an  individual,  by  imputing  to  him  either  bad  actions 
or  vicious  principles,  or  which  diminish  his  respectability  and  abridge 
his  comforts  by  exposing  him  to  disgrace  and  ridicule,  are  actionable 
without  proof  of  special  damage;  in  short,  that  an  action  lies  for 
any  false,  malicious  and  personal  imputation  effected  by  such  means 
and  tending  to  alter  the  party's  situation  in  society  for  the  worse." 
The  rule  is  the  same  and  the  like  distinction  prevails  in  Massachu- 
setts. Clark  V.  Binney,  2  Pick.  113.  Assuming  that  at  an  early 
period  of  the  law,  before  the  art  of  printing  was  invented  or  per- 
fected, the  distinction  between  words  spoken  and  written  slander 
was  not  recognized,  the  change  may,  I  apprehend,  be  accounted  for 
by  the  greater  necessity  for  such  a  distinction  in  more  modern  times, 
when  the  tendency  of  the  public  press  is  so  strong  to  licentiousness. 
It  does  not  appear  to  me  that  individual  character  is  more  than  ade- 

1  Post,  p.  449. 


420  HANSON    V.   GLOBE    NEWSPAPER   CO.  [CIIAP.   XII. 

quately  protected  by  the  legal  remedies,  civil  and  criminal,  which  the 
law  as  it  has  been  established  for  the  last  century  and  a  half,  both 
in  England  and  in  this  country,  affords.  If  this  court  were  compe- 
tent to  repudiate  a  distinction  so  well  settled  as  that  between  written 
and  spoken  scandal,  public  policy  would,  in  my  opinion,  interpose  to 
prevent  it.  .  .  .  [The  court  discussed  the  sufficiency  of  the  defend- 
ants' pleas,  and  concluded:]  The  plaintiff  is  entitled  to  judgment 
upon  the  demurrer  to  the  several  pleas  to  the  second  count,  and  the 
defendants  to  judgment  upon  the  demurrer  to  the  pleas  pleaded  to 
the  first  count,  with  leave  to  each  party  to  amend  on  the  usual  terms. 

Judgment  accordingly. 


HANSON"   V.    GLOBE    NEWSPAPER    COMPANY. 

Supreme  Court  of  Massachusetts,  June,  1893.     159  Mass.  293. 

The  case  is  stated  in  the  opinion. 

Knowlton,  J.  The  defendant  published  in  its  newspaper  an 
article  describing  the  conduct  of  a  prisoner  brought  before  the  Munic- 
ipal Court  of  Boston,  and  the  proceedings  of  the  court  in  the  case, 
designating  him  as  "  H.  P.  Hanson,  a  real  estate  and  insurance  broker 
of  South  Boston."  He  was,  in  fact,  a  real  estate  and  insurance 
broker  of  South  Boston,  and  the  article  was  substantially  true,  except 
that  he  should  have  been  called  A.  P.  H.  Hanson  instead  of  H.  P. 
Hanson.  The  plaintiff,  H.  P.  Hanson,  is  also  a  real  estate  and  in- 
surance broker  in  South  Boston,  and  in  writing  the  article  the  re- 
porter used  his  name  by  mistake.  The  justice  of  the  Superior  Court, 
before  whom  the  case  was  tried,  without  a  jur}^  "  found  as  a  fact  that 
the  alleged  libel  declared  on  by  the  plaintiff  was  not  published  by 
the  defendant  of  or  concerning  the  plaintiff,"  and  the  only  question 
in  the  case  is  whether  this  finding  was  erroneous  as  matter  of  law. 

In  a  suit  for  libel  or  slander,  it  is  always  necessary  for  the  plaintiff 
to  allege  and  prove  that  the  words  were  spoken  or  written  of  and 
concerning  the  plaintiff.  In  Baldwin  v.  Hildreth,  14  Gray,  221,  the 
declaration  was  adjudged  bad  on  demurrer,  because  this  allegation  was 
wanting.  The  rule  is  affirmed,  and  authorities  are  cited,  in  McCallum 
V.  Lambie,  145  Mass.  234.  The  form  of  declaration  prescribed  by  the 
Practice  Act  in  slander  uses  the  phrase  "  words  spoken  of  tlie  plain- 
tiff," and  in  libel,  "  false  and  malicious  libel  concerning  the  plain- 
tiff." Pub.  Sts.  c.  Ifi7  s.  94.  It  has  often  been  held  that  it  is  a  ques- 
tion of  fact  for  the  jury  whether  the  words  were  or  were  not  spoken 
or  written  "of  and  concerning  tbe  plaintiff."  Van  Yecliten  v.  Hop- 
kins, 5  Johns.  211,  221.    CiI)son  v.  Williams,  4  Wend.  320.     Smart  v. 


CHAP.    XII.]  SLANDER   AND   LIBEL.  421 

Blanchard,  43  K  H.  137.  De  Armond  v.  Armstrong,  37  Ind.  35. 
Goodrich  v.  Davis,  11  Met.  473,  480,  481,  484.  Miller  v.  Butler,  6 
Gush.  71.  The  defendant's  meaning  in  regard  both  to  the  person  to 
whom  the  words  should  be  applied  and  the  imputations  against  him 
is  always  to  be  ascertained.  In  Smart  v.  Blanchard,  ubi  supra,  it  is 
said  that  "the  meaning  ...  in  this  respect  (as  to  the  person  to 
whom  the  libel  applies)  is  undoubtedly  a  question  of  fact  to  be  found 
by  the  jury."  It  is  also  said  that,  when  the  meaning  is  ambiguous, 
it  is  incumbent  on  the  plaintiff  "  to  show  that  the  defendant  intended 
to  apply  his  remarks  to  the  plaintiff."  In  Le  Fanu  v.  Malcomson,  1 
H.  L.  Gas.  637,  which  was  an  action  for  libel  brought  by  copartners, 
the  Lord  Chancellor  assumes  that  the  plaintiff  must  prove  "  that  the 
party  writing  the  libel  did  intend  to  allude  to  them." 

In  Pub.  Sts.  c.  167,  s.  94,  the  rule  is  laid  down  as  applicable  "  to 
actions  for  written  and  printed,  as  well  as  oral  slander,"  that  if  the 
meaning  is  not  clear  there  must  be  innuendoes  to  make  the  words  in- 
telligible, "  in  the  same  sense  in  which  they  were  spoken."  Ghenery 
V.  Goodrich,  98  Mass.  224,  229,  assumes  that  it  must  appear  that  the 
plaintiff  was  referred  to  in  the  publication,  and  Young  v.  Cook,  144 
Mass.  38,  is  of  similar  import.  Odgers  on  Libel  and  Slander,  at  page 
127,  discusses  the  topic,  "  Certainty  as  to  person  defamed."  In  Com- 
monwealth V.  Kneeland,  20  Pick.  206,  216,  Chief  Justice  Shaw  says 
that  in  actions  of  libel  and  slander  it  is  the  general  rule  that  "  the 
language  shall  be  construed  ...  in  the  sense  in  which  the  writer  or 
speaker  intended  it."  In  Smith  v.  Ashley,  11  Met.  367,  the  necessity 
of  proving  the  defendant's  actual  intention  in  regard  to  the  person 
referred  to  was  affirmed  much  more  strongly  than  there  is  any  occa- 
sion to  affirm  it,  and  perhaps  more  strongly  than  we  should  be  pre- 
pared to  affirm  it  in  the  present  case.  It  was  held  that  the  publisher 
of  a  newspaper  containing  an  article  which  he  believed  to  be  a  ficti- 
tious narrative  or  mere  fancy  sketch  was  not  liable  to  the  plaintiff, 
although  the  article  was  libellous,  and  was  intended  by  the  writer 
to  be  applied  to  the  plaintiff.  The  court  said  that  in  such  a  case,  the 
writer  alone  was  responsible. 

In  every  action  of  this  kind  the  fundamental  question  is,  What  is 
the  meaning  of  the  author  of  the  alleged  libel  or  slander,  conveyed  by 
the  words  used  interpreted  in  the  light  of  all  the  circumstances? 
The  reason  of  this  is  obvious.  Defamatory  language  is  harmful  only 
as  it  purports  to  be  the  expression  of  the  thought  of  him  who  uses 
it.  In  determining  the  effect  of  a  slander  the  questions  involved  are. 
What  is  the  thought  intended  to  be  expressed,  and  how  much  credit 
should  be  given  to  him  who  expresses  it?  The  essence  of  the  wrong 
is  the  expression  of  what  purports  to  be  the  knowledge  or  opinion  of 
him  who  utters  the  defamatory  words,  or  of  some  one  else  whose  lan- 
guage he  repeats.  His  meaning,  to  be  ascertained  in  a  proper  way, 
is  what  gives  character  to  his  act,  and  makes  it  innocent  or  wrongful. 


422  HANSON    V.    GLOBE    NEWSPAPER   CO.  [CHAP.   XIL 

The  damages  depend  chiefly  upon  the  weight  which  is  to  be  given  to 
his  expression  of  his  meaning,  and  all  the  questions  relate  back  to  the 
ascertainment  of  his  meaning. 

In  the  present  case  we  are  concerned  only  with  the  meaning  of  the 
defendant  in  regard  to  the  person  to  whom  the  language  of  the  pub- 
lished article  was  to  be  applied,  and  the  question  to  be  decided  is, 
How  may  his  meaning  legitimately  be  ascertained?  Obviously,  in 
the  first  place,  from  the  language  used ;  and  in  construing  and  apply- 
ing the  language,  the  circumstances  under  which  it  was  written  and 
the  facts  to  which  it  relates  are  to  be  considered,  so  far  as  they  can 
readily  be  ascertained  by  those  who  read  the  words,  and  w^ho  attempt 
to  find  out  the  meaning  of  the  author  in  regard  to  the  person  of  whom 
they  were  written.  It  has  often  been  said  that  the  meaning  of  the 
language  is  not  necessarily  that  which  it  may  seem  to  have  to  those 
who  read  it  as  strangers,  without  knowledge  of  facts  and  circum- 
stances which  give  it  color  and  aid  in  its  interpretation,  but  that 
which  it  has  when  read  in  the  light  of  events  which  have  relation  to 
the  utterance  or  publication  of  it. 

For  the  purposes  of  this  case  it  may  be  assumed,  in  favor  of  the 
plaintiff,  that  if  the  language  used  in  a  particular  case,  interpreted 
in  the  light  of  such  events,  and  circumstances  attending  the  publica- 
tion of  it  as  could  readily  be  ascertained  by  the  public,  is  free  from 
ambiguity  in  regard  to  the  person  referred  to,  and  points  clearly  to 
a  well  known  person,  it  would  be  held  to  have  been  published  concern- 
ing that  person,  although  the  defendant  should  show  that  through 
some  mistake  of  fact,  not  easily  discoverable  by  the  public,  he  had 
designated  in  his  publication  a  person  other  than  the  one  whom  he 
intended  to  designate.  It  may  well  be  held  that  where  the  language, 
read  in  connection  with  all  the  facts  and  circumstances  which  can  be 
used  in  its  interpretation,  is  free  from  ambiguity,  the  defendant  will 
not  be  permitted  to  show  that  through  ignorance  or  mistake  he  said 
something,  either  by  way  of  designating  the  person,  or  making  asser- 
tions about  him,  different  from  that  which  he  intended  to  say;  but 
his  true  meaning  should  be  ascertained,  if  it  can  be,  with  the  aid 
of  such  facts  and  circumstances  attending  the  publication  as  may 
easily  be  known  by  those  of  the  public  who  wish  to  discover  it. 

Whether  the  defendant  should  ever  be  permitted  to  state  his  undis- 
closed intention  in  regard  to  the  person  of  whom  the  words  are  used, 
may  be  doubtful.  If  language  purporting  to  be  used  of  only  one 
person  would  refer  equally  to  either  of  two  different  persons  of  the 
same  name,  and  if  there  were  nothing  to  indicate  that  one  was  meant 
rather  than  the  other,  there  is  good  reason  for  holding  that  the  de- 
fendant's testimony  in  regard  to  his  secret  intention  might  be  re- 
ceived, but  porhapa  such  a  case  is  liardly  supposable.  Odgers,  in  his 
hook  on  l/ih(!l  and  Slander,  at  page  129,  says:  "So,  if  the  words 
fipokcn  or  written,  though  plain  in  themselves,  apply  equally  well  to 


CHAP.   XII.]  SLANDER   AND   LIBEL.  423 

more  persons  than  one,  evidence  may  be  given  both  of  the  cause  and 
occasion  of  publication,  and  of  all  the  surrounding  circumstances 
affecting  the  relation  between  the  parties,  and  also  any  statement  or 
declaration  made  by  the  defendant  as  to  the  person  referred  to." 
In  Regina  v.  Barnard,  43  J.  P.  127,  when  it  was  uncertain  whether 
the  libel  referred  to  the  complainant  or  not,  and  when  the  language 
was  applicable  to  him,  Lord  Chief  Justice  Cockbum  held  the  affi- 
davit of  the  writer  that  he  did  not  mean  him,  but  some  one  else,  to 
be  a  sufficient  reason  for  refusing  process.  In  De  Armond  v.  Arm- 
strong, 37  Ind.  35,  evidence  was  received  of  what  the  witnesses  under- 
stood in  regard  to  the  person  referred  to.  In  Smart  v.  Blanchard,  43 
N.  H.  137,  it  is  stated  that  extrinsic  evidence  is  to  be  received  "  to 
show  that  the  defendant  intended  to  apply  his  remarks  to  the  plain- 
tiff," when  his  meaning  is  doubtful.  Goodrich  v.  Davis,  11  Met.  473, 
480,  484,  485,  and  Miller  v.  Butler,  6  Cush.  71,  are  of  similar  pur- 
port. See  also  Barwell  v.  Adkins,  1  M.  &  G.  807;  Knapp  v.  Fuller, 
65  Vt.  311 ;    Commonwealth  v.  Morgan,  107  Mass.  199,  201. 

If  the  defendant's  article  had  contained  anything  libellous  against 
A.  P.  H.  Hanson,  there  can  be  no  doubt  that  he  could  have  main- 
tained an  action  against  the  defendant  for  this  publication.  The 
name  used  is  not  conclusive  in  determining  the  meaning  of  the  libel 
in  respect  to  the  person  referred  to ;  it  is  but  one  fact  to  be  considered 
with  other  facts  upon  that  subject.  Fictitious  names  are  often  used 
in  libels,  and  names  similar  to  that  of  the  person  intended,  but  dif- 
fering somewhat  from  it.  A.  P.  H.  Hanson  could  have  shown  that 
the  description  of  him  by  name,  residence,  and  occupation  was  per- 
fect, except  in  the  use  of  the  initials  "  H.  P."  instead  of  "  A.  P.  H.," 
that  the  article  referred  to  an  occasion  on  which  he  was  present,  and 
gave  a  description  of  conduct  of  a  prisoner,  and  of  proceedings  in 
court,  which  was  correct  in  its  application  to  him  and  to  no  one  else. 
The  internal  evidence  when  applied  to  facts  well  known  to  the  public 
would  have  been  ample  to  show  that  the  language  referred  to  him, 
and  not  to  the  person  whose  name  was  used. 

So,  in  the  present  suit,  the  court  had  no  occasion  to  rely  on  the 
testimony  of  the  writer  as  to  the  person  to  whom  the  language  was 
intended  to  apply.  The  language  itself,  in  connection  with  the  pub- 
licly known  circumstances  under  which  it  was  written,  showed  at 
once  that  the  article  referred  to  A.  P.  H.  Hanson,  and  that  the  name 
H.  P.  Hanson  was  used  by  mistake.  As  the  evidence  showed  that  the 
words  were  published  of  and  concerning  A.  P.  H.  Hanson,  the  finding 
that  they  were  not  published  of  the  plaintiff  followed  of  necessity. 
The  article  was  of  such  a  kind  that  it  referred,  and  could  refer,  to 
one  person  only;  when  that  person  was  ascertained,  it  might  appear 
that  the  publication  as  against  him  was  or  was  not  libellous,  and  his 
rights,  if  he  brought  a  suit,  would  depend  upon  the  finding  in  respect 
to  that.    No  one  else  would  have  a  cause  of  action,  even  if,  by  reason 


424  HANSON   V.    GLOBE    NEWSPAPER   CO.  [CHAP.   XII. 

of  identity  of  name  with  that  used  in  the  publication,  he  might  suffer 
some  harm.  For  illustration,  suppose  a  libel  is  written  concerning 
a  person  described  as  John  Smith  of  Springfield.  Suppose  there  are 
five  persons  in  Springfield  of  that  name.  The  language  refers  to  but 
one.  When  we  ascertain  by  legitimate  evidence  to  which  one  the  words 
are  intended  to  apply,  he  can  maintain  an  action.  The  other  persons 
of  the  same  name  cannot  recover  damages  for  a  libel  merely  because 
of  their  misfortune  in  having  a  name  like  that  of  the  person  libelled. 
Or,  if  the  defendant  can  justify  by  proving  that  the  words  were  true, 
and  published  without  malice,  he  is  not  guilty  of  a  libel,  even  if, 
written  of  other  persons  of  the  same  name  of  whose  existence  very 
likely  he  was  ignorant,  the  words  would  be  libellous;  otherwise,  one 
who  has  published  that  which  by  its  terms  can  refer  to  but  one  person, 
and  be  a  libel  on  him  only,  might  be  responsible  for  half  a  dozen  libels 
on  as  many  difl^erent  persons,  and  one  who  has  justifiably  published 
the  truth  of  a  person  might  be  liable  to  several  persons  of  the  same 
name  of  whom  the  language  would  be  untrue.  The  law  of  libel  has 
never  been  extended,  and  should  not  be  extended,  to  include  such  cases. 

Whether  there  should  be  a  liability  founded  on  negligence  in  any 
case  when  the  truth  is  published  of  one  to  whom  the  words,  inter- 
preted in  the  light  of  accompanying  circumstances  easily  ascertain- 
able by  those  who  read  them,  plainly  apply;  and  where,  by  reason  of 
identity  of  names,  or  similarity  of  names  and  description,  a  part  of 
the  public  might  think  them  applicable  to  another  person  of  whom 
they  would  be  libellous,  is  a  question  which  does  not  arise  on  the 
pleadings  in  this  case.  So  far  as  we  are  aware,  no  action  for  such 
a  cause  has  ever  been  maintained.  It  is  ordinarily  to  be  presumed, 
although  it  may  not  always  be  the  fact,  that  those  who  are  enough 
interested  in  a  person  to  be  affected  by  what  is  said  about  him,  will 
ascertain,  if  they  easily  can,  whether  libellous  words  which  purport 
to  refer  to  one  of  his  name  were  intended  to  be  applied  to  him  or  to 
some  one  else. 

The  question  in  this  case,  whether  the  words  were  published  of  and 
concerning  tlie  plaintiff,  Avas  one  of  fact  on  all  the  evidence.  Unless 
it  appears  that  tlie  matters  stated  in  the  report  would  not  warrant  a 
finding  for  the  defendant,  there  must  be  judgment  for  him,  even 
if  the  finding  of  fact  might  have  been  the  other  way.  We  are  of 
opinion  that  the  finding  was  well  warranted,  and  there  must  be. 

Judgment  on  the  finding.'^ 

Holmes,  J.,  delivered  a  dissenting  opinion,  with  which  Morton 
and  Barker,  JJ.,  agreed. 

»  See  contra,  Taylor  v.  Ilearst,  107  Cal.  2G2,  and  authorities  cited. 


CHAP.    XII.]  SLANDER   AND   LIBEL.  425 

PEAKE    V.    OLDHAM. 
King's  Bench  of  England,  Easter  Term,  1775.     1  Cowp.  275. 

Error  from  the  Common  Pleas  in  an  action  of  slander,  in  which 
the  plaintiff,  now  the  defendant  in  error,  declared  that  upon  a  collo- 
quium of  and  concerning  the  death  of  one  Daniel  Dolly,  the  said 
Thomas  Peake  said  to  the  said  James  Oldham:  1.  "You  are  a  bad 
man,  and  I  am  thoroughly  convinced  that  you  are  guilty  (meaning 
guilty  of  the  murder  of  the  said  Dolly)  ;  and,  rather  than  you  should 
want  a  hangman,  I  would  be  your  executioner."  And  being  apprised 
that  the  said  words  were  actionable,  and  being  interrogated  how  he 
would  prove  what  he  said,  answered  that  "  he  would  prove  it  by  ]\Irs. 
Harvey."  2.  "  You  are  a  bad  man,  and  I  am  thoroughly  convinced 
that  you  are  guilty  (innuendo  ut  antea) ;  and,  rather  than  you  should 
want  a  hangman,  I  would  be  your  executioner."  Being  interrogated 
how  he  could  prove  the  said  James  Oldham  guilty  of  the  murder  of 
the  said  Daniel  Dolly,  he  replied,  "  I  can  prove  it  by  Mrs.  Harvey." 
3.  "You  are  guilty  (innuendo  ut  antea),  and  I  will  prove  it."  4.  "I 
am  thoroughly  convinced  that  you  are  guilty  (meaning  guilty  of  the 
death  of  Daniel  Dolly)  ;  and,  rather  than  you  should  go  without  a 
hangman,  I  will  hang  you."  5.  "You  are  guilty"  (innuendo,  guilty 
of  the  murder  of  the  said  Dolly).  By  reason  whereof,  and  to  clear 
his  character,  the  said  James  Oldham  was  obliged  to  procure,  and  did 
procure,  an  inquest  in  due  form  of  law  to  be  taken  on  the  body  of  the 
said  Daniel  Dolly. 

Upon  not  guilty  pleaded,  the  jury  found  a  general  verdict  upon  all 
the  counts,  with  £500  damages. 

The  defendant  first  moved  for  a  new  trial  in  C.  B.,  which  was  re- 
fused ;  and  afterwards  in  arrest  of  judgment,  which  rule  was  likewise 
discharged  by  Gould  and  Blackstone,  J  J.  (absentib.  De  Grey,  C.  J., 
and  Nares,  J.). 

Lord  Mansfield.  It  is  much  to  be  lamented  that  in  any  sort  of 
action  the  mere  inattention  or  slip  of  counsel,  who  are  not  always 
sufficiently  attentive  upon  what  count  the  verdict  is  taken,  should  be 
fatal  to  the  party,  contrary  to  the  truth  and  justice  of  the  case,  the 
opinion  of  the  judge  upon  the  merits  who  tried  the  cause,  and  the 
meaning  of  the  jury  who  pronounced  the  verdict.  However,  in  civil 
eases  the  rule  most  certainly  is  settled,  that  where  a  verdict  is  taken 
generally,  and  any  one  count  is  bad,  it  vitiates  the  whole.  It  has 
always  struck  me  that  the  rule  would  have  been  much  more  proper 
to  have  said,  that  if  there  is  any  one  count  to  support  the  verdict,  it 
shall  stand  good  notwithstanding  all  the  rest  are  bad.  In  criminal 
cases  the  rule  is  so;  and  one  cannot,  therefore,  but  lament  that  the 
reverse  is  adopted  in  civil  cases;    because  it  is  as  it  were  catching 


426  PEAKE    V.    OLDHAM.  [CHAP.    XII. 

justice  in  a  net  of  form.  However,  this  consideration  will  make  the 
court  lean  against  setting  aside  a  verdict  upon  such  an  objection 
vrithout  very  good  reason,  that  is,  without  some  apparent  manifest 
defect;  more  especially  in  a  case  like  the  present,  where  the  words 
have  appeared  to  the  jury  to  be  so  scandalous  as  to  induce  them  to 
give  a  verdict  with  £500  damages,  and  where  that  verdict  has  received 
the  sanction  of  the  court  in  which  the  action  was  brought,  by  their 
refusing  to  grant  a  new  trial  upon  an  application  to  them  for  that 
purpose. 

Let  us  consider,  then,  the  grounds  upon  which  the  declaration  in 
the  present  case  is  attempted  to  be  impeached.  Two  of  the  counts 
are  objected  to,  viz.,  the  fourth  and  last.  In  the  fourth  it  is  said  thus: 
"I  am  thoroughly  convinced  that  you  are  guilty  (innuendo  that  you 
are  guilty  of  the  death  of  the  said  Daniel  Dolly)  ;  and,  rather  than 
you  should  go  without  a  hangman,  I  will  hang  you."  Upon  this 
count  it  is  argued  that  there  are  many  innocent  ways  by  which  one 
man  may  occasion  the  death  of  another ;  therefore  the  words,  "  guilty 
of  the  death,"  do  not  in  themselves  necessarily  import  a  charge  of 
murder;  and  consequently,  as  no  particular  act  is  charged  which  in 
itself  amounts  to  an  imputation  of  a  crime,  the  words  are  defectively 
laid.  WTiat !  when  the  defendant  tells  the  plaintiff  "  he  is  guilty  of 
the  death  of  a  person,"  is  not  that  a  charge  and  imputation  of  a  very 
foul  and  heinous  kind?  Saying  that  such  a  one  is  the  cause  of  an- 
other's death,  as  in  the  case  in  3  Bulstr.  10,  11,  is  very  different; 
because  a  physician  may  be  the  cause  of  a  man's  death,  and  very 
innocently  so ;  but  the  word  "  guilty "  implies  a  malicious  intent, 
and  can  be  applied  only  to  something  which  is  universally  allowed 
to  be  a  crime.  But  the  defendant  does  not  rest  here;  on  the  con- 
trary, in  order  to  explain  his  meaning,  he  goes  on  and  says,  "  and, 
rather  than  you  should  be  without  a  hangman,  I  will  hang  you." 
These  words  plainly  sliow  what  species  of  death  the  defendant  meant, 
and  therefore  in  themselves  manifestly  import  a  charge  of  murder. 

The  innuendo  to  the  words  of  the  next  count  is,  that  they  mean 
"guilty  of  the  murder  of  Daniel  Dolly;"  and  the  jury  by  their  ver- 
dict have  found  tlie  fact,  namely,  that  such  was  the  meaning  of  the 
defendant.  But  that  is  not  all;  for  the  jury  find  a  special  damage 
sustained  by  the  plaintiff  in  being  obliged,  in  consequence  of  the 
cbarge  so  made  by  the  defendant,  to  have  an  inquest  taken  on  the 
body  of  the  deceased. 

What !  after  a  verdict,  shall  the  court  be  guessing  and  inventing 
a  mode,  in  which  it  might  be  barely  possible  for  these  words  to  have 
bf'on  spoken  by  the  defendant,  witbout  meaning  to  charge  the  plain- 
tiff with  being  guilty  of  murder?  Certainly  not.  Where  it  is  clear 
that  words  are  defectively  laid,  a  verdict  will  not  cure  them.  But 
where,  from  their  general  import,  they  appear  to  have  been  spoken 
with  a  view  to  defame  a  party,  the  court  ought  not  to  be  industrious 


CHAP.    XII.]  SLANDER   AND   LIBEL.  427 

in  putting  a  construction  upon  them  different  from  what  they  bear 
in  the  common  acceptation  and  meaning  of  them. 

I  am  furnislicd  ^vith  a  case  founded  in  strong  sense  and  reason  in 
support  of  this  opinion;  the  name  of  it  is  Ward  v.  Keynolds,  Pas.  13, 
Ann.  B.  E.,  and  it  is  as  follows:  The  defendant  said  to  the  plaintiff, 
"  I  know  you  very  well ;  how  did  your  husband  die  ?  "  The  plaintiff 
answered,  "  As  you  may,  if  it  please  God."  The  defendant  replied, 
"  No ;  he  died  of  a  wound  you  gave  him."  On  not  guilty,  there  was 
a  verdict  for  the  plaintiff;  and  on  a  motion  in  arrest  of  judgment 
the  court  held  the  words  actionable;  because,  from  the  whole  frame 
of  them,  they  were  spoken  by  way  of  imputation.  And  Lord  Chief 
Justice  Parker  said :  ''  It  is  very  odd  that  after  a  verdict  a  court  of 
justice  should  be  trying  whether  there  may  not  be  a  possible  case  in 
which  words  spoken,  by  way  of  scandal,  might  not  be  innocently  said. 
Wliereas,  if  that  were  in  truth  the  case,  the  defendant  might  have 
justified,  or  the  verdict  would  have  been  otherwise."  So  here,  if 
shown  to  be  innocently  spoken,  the  jury  might  have  found  a  verdict 
for  the  defendant;  but  they  have  put  a  contrary  construction  upon 
the  words  as  laid,  and  upon  the  last  count  have  found  that  the  defend- 
ant meant  a  charge  of  murder.  Therefore  I  am  of  opinion  that  the 
judgment  of  C.  B.  must  be  affirmed. 

Aston,  Willes,  and  Ashhurst,  JJ.,  of  the  same  opinion. 

Judgment  affirmed. 


GAMBEILL   v.    SCHOOLEY. 

Court  of  Appeals  of  Maryland,  February,  1901.     93  Md.  48. 

The  case  is  stated  in  the  opinion. 

Pearce,  J.  This  is  an  action  of  libel  in  which  the  appellee  re- 
covered a  judgment  for  $500  against  the  appellant  in  the  Superior 
Court  of  Baltimore  City.  The  plaintiff  offered  5  prayers,  all  of  which 
were  granted;  and  the  defendant  offered  15  prayers,  of  which  the 
4th,  5th,  6th,  7th,  8th,  10th,  11th,  12th,  13th,  and  14th  were  granted 
and  his  1st,  2d,  3d,  9th,  and  15th  were  rejected.  A  single  exception 
was  taken  by  the  defendant  to  this  ruling  on  the  prayers,  and  the 
three  following  questions  arise  upon  the  exception :  1st.  Whether  the 
dictation  of  alleged  libellous  letters  to  defendant's  private  and  con- 
fidential stenographer,  their  reduction  by  her  to  stenographic  char- 
acters, and  subsequent  reduction  to  the  characters  of  the  alphabet  by 
means  of  a  typewriter,  their  signing  by  the  defendant,  and  their 
transmission  by  his  direction  to  the  plaintiff,  are  in  law  a  publication 
of  such  letters,  where  there  is  no  communication  of  any  of  said  letters 
in  any  manner  to  any  other  person.    2nd.  Whether  in  such  case,  the 


428  GAMBRILL   V.   SCHOOLEY.  [CHAP.   XII. 

proper  action  is  for  libel  or  slander.  3rd.  Whether,  under  the  testi- 
mony in  this  case,  the  jury  was  properly  instructed  as  to  the  allow- 
ance of  exemplary  or  vindictive  damages. 

There  were  three  counts  in  the  declaration,  upon  three  separate 
letters,  and  the  case  was  tried  on  the  general  issue  plea,  there  being 
no  plea  of  justification  alleging  the  truth  of  any  of  the  charges  con- 
tained in  any  of  the  letters,  either  in  whole  or  in  part.  Of  the  libellous 
character  of  each  of  these  letters  there  can  be  no  question,  but  the 
letter  in  the  3d  count  was  shown  by  the  uncontradicted  testimony  to 
be  wholly  in  the  handwriting  of  defendant,  and  never  to  have  been 
read  or  exhibited  to  any  one  but  the  plaintiff;  and  the  jury  was 
properly  instructed  by  the  defendant's  4th  prayer  that  there  could 
be  no  recovery  on  the  3d  count. 

It  was  very  earnestly  and  ably  argued  by  the  appellant's  counsel 
that,  as  the  two  letters  in  the  1st  and  2d  counts  were  not  otherwise 
published  than  as  above  stated,  there  was  no  actionable  publication  of 
either  letter,  so  as  to  make  either  one  a  libel,  and  consequently,  that 
the  Court  erred  in  granting  the  plaintiff's  31/2  and  4I/2  prayers,  and 
in  rejecting  the  defendant's  1st,  2d,  and  3d  prayers,  which,  respect- 
ively, raised  the  contentions  of  the  parties  on  this  point. 

This  is  certainly  an  important  question,  and  one  which  has  never 
before  been  raised  in  this  Court.  Indeed,  the  appellant's  counsel 
states  in  his  brief,  that  it  has  never  been  expressly  ruled  upon  in 
America,  though  he  has  referred  us  to  a  case  in  the  Appellate  Division 
of  the  Supreme  Court  of  New  York  (Owen  v.  Ogilvie  Pub.  Co.,  32 
App.  Div.  465),  which  he  contends  supports  his  position.  The  ap- 
pellee's counsel  has  submitted  a  very  full  brief,  but  has  referred  us 
to  no  American  case  upon  this  point.  If  such  authorities  existed,  we 
may  safely  assume  they  would  not  have  escaped  the  well-known  dili- 
gence of  counsel,  and  we  have  found  none  such  in  our  own  examina- 
tion; but  the  principles  and  considerations  upon  which  this  question 
should  be  decided  are  not,  in  our  opinion,  difficult  to  determine,  and 
the  instructive  English  cases  which  have  been  cited  are  in  accord 
with  these  principles  and  considerations. 

Before  considering  the  argument  of  the  appellant,  it  will  be  well  to 
recall  the  definition  of  publication,  given  by  competent  authority, 
as  necessary  to  constitute  slander  a  ^  libel.  Mr.  Odgers,  in  his  work 
on  Libel  and  Slander,  page  150,  defines  publication  as  applicable 
either  to  slander  or  libel,  as  "  the  communication  of  the  defamatory 
words  to  some  third  person ; "  and  on  page  1,  he  says,  "  False  defama- 
tory words,  if  written  and  -published,  constitute  a  libel;  if  spoken,  a 
Blander."  It  is  obvious  however,  that  publication  is  essential  to 
cillicr,  and  that  the  words  "if  published,"  though  not  repeated  in  the 
latter  clause,  must  be  understood  as  if  repeated.  For  to  shout  aloud 
defamatory  words  on  a  desert  moor,  where  no  one  hears  them,  is  not 

*  sic,  for  or. 


CHAP.    XIT.]  SLANDER   AND   LIBEL.  429 

a  publication  of  the  slander,  nor  is  the  utterance  of  such  words  in 
a  foreign  language,  a  publication,  if  no  one  present  understands  their 
meaning.  Id.  151.  For  the  same  reason,  very  clearly,  if  one  should 
write  a  defamatory  letter,  and  hand  it  to  a  third  person,  to  be  read, 
who  does  not  understand  and  cannot  read  that  language,  there  would 
be  no  publication  of  the  libel.  In  Pullman  v.  Walter  Hill  &  Co., 
[1891],  1  Q.  B.  529,  Lopes,  L.  J.,  defines  publication  of  a  libel  in  the 
exact  words  cited  from  Mr.  Odgers,  and  in  the  same  case,  Lord  Esher, 
Master  of  the  Eolls,  defines  it,  more  fully,  and  perhaps  with  more 
technical  accuracy,  as  "  the  making  known  the  defamatory  mattrr. 
after  it  has  been  written,  to  some  person  other  than  the  person  to 
whom  it  is  written."  Appellant's  counsel,  in  his  brief,  says,  with 
equal  clearness  and  accuracy:  "Publication,  in  the  law  of  libel  and 
slander,  means  the  transmission  of  ideas  and  thoughts  to  the  per- 
ception of  a  person,  other  than  the  parties  to  the  suit." 

Bearing  in  mind  these  definitions  and  simple  illustrations  of  what 
is,  and  what  is  not,  publication,  it  will  be  seen  that  the  argument  that 
there  has  been  no  actionable  publication  in  this  case,  divides  itself 
into  two  branches.  The  theory  of  the  first  branch  is,  that  while  there 
was  in  fact  a  physical  or  mechanical  reception  by  the  stenographer 
of  the  thoughts  expressed  by  the  appellant,  that  such  reception  was  in- 
stantaneous only,  and  merely  sufficient  for  their  reduction  to  written 
characters ;  but  that  there  was  no  comprehension,  and  no  lodgment,  of 
their  meaning  in  the  brain  of  the  recipient,  who  acted  as  a  mere 
phonograph,  and  whose  function  in  that  regard  was  not  a  mental,  but 
purely  a  mechanical  process;  so  that  there  was  no  such  perception  as 
is  requisite  to  constitute  publication.  This  theory  is  both  ingenious 
and  subtle,  but  we  cannot  be  persuaded  it  is  sound.  We  cannot  doubt 
that  the  dictation  to  Miss  Willis,  though  taken  down  in  stenographic 
characters,  produced  in  her  mind  as  full  and  complete  perception  of 
the  thoughts  of  the  appellant  as  a  slower  dictation,  for  the  purpose 
of  reduction  to  ordinary  characters,  would  have  produced  in  the  mind 
of  one  not  a  stenographer.  If  this  were  not  so,  there  could  be  no 
assurance  that  there  would  be  an  accurate  reproduction  of  the  matter 
dictated,  such  as  common  knowledge  gives  assurance  of  from  any 
skillful  stenographer.  A  communication,  therefore,  to  a  stenogra- 
pher must  be  regarded  precisely  as  a  communication  to  an  ordinary 
amanuensis,  and  as  establishing  all  that  is  ordinarily  necessary  to 
constitute  publication. 

The  second  branch  of  tlie  argument  is,  that  in  view  of  the  fact  that 
]\Iiss  Willis  was  the  private  and  confidential  stenographer  of  the  de- 
fendant, and  in  view  of  the  almost  universal  employment,  in  this 
country,  of  such  stenographers,  and  the  necessity  for  such  employment 
consequent  upon  the  demands  of  business,  a  communication  to  such 
a  stenographer  should  be  made  an  exception  to  the  general  rule,  and 
be  held  not  to  be  an  actionable  publication.     But  we  cannot  adopt 


430  GAMBKILL   V.    SCHOOLEY.  [CHAP.    XII. 

this  view.     Apart  from  any  precedent  or  authority,  we  can  perceive 
no  good  reason  why  such  an  exception  should  be  made  to  the  rule. 
Neither  the  prevalence  of  any  business  customs  or  methods,  nor  the 
pressure  of  business  which  compels  resort  to  stenographic  assistance, 
can  make  that  legal  which  is  illegal,  nor  make  that  innocent  which 
would   otherwise   be   actionable.     Nor   can   the   fact   that  the   sten- 
ographer is  under  contractual  or  moral  obligation  to  regard  all  his 
employer's  communications  as   confidential  alter  the  reason   of   the 
matter.    This  defence  was  made  in  Williamson  v.  Freer,  L.  E.  9  C.  P. 
393,  where  it  was  held  that  the  unnecessary  transmission  by  a  post- 
office  telegram,  of  libellous  matter,  which  would  have  been  privileged, 
if   sent   in   a   sealed   letter,   avoids  the   privilege;    Lord    Coleridge, 
C.   J.,   saying :   "  Although  the   clerks  are   prohibited  under   severe 
penalties  from  disclosing  the  contents  of  telegrams  passing  through 
their  hands,  still  there  is  disclosure  to  them."     In  Pullman  v.  Hill, 
already  cited,  the  exact  question  here  presented  was  decided.     There, 
the   letter  containing  the   defamatory  matter  was   dictated  by   the 
managing  director  of  a  corporation  to  a  clerk,  who  took  down  the 
words  in  shorthand,  and  then  wrote  them  out  fully  by  means  of  a 
typewriting  machine,  and  the  letter  thus  vrritten  was  copied  by  an 
office  boy  in  a  letter-press  book.     When  it  reached  its  destination, 
it  was,  in  the  ordinary  course  of  business,  opened  by  a  clerk  of  the 
plaintiff;    and  it  was  held  that  the  letter  must  be  taken  to  have 
been  published  both  to  the  typewriter  and  to  the  copy-press   boy, 
as   well   as   to   the   plaintiff's   clerk.      Lord   Esher,   M.    E.,    in   the 
course  of  his  opinion,  said :  "  I  do  not  think  that  the  necessities  or 
the  luxuries  of  business  can  alter  the  law  of  England.    If  a  merchant 
wishes  to  write  a  letter  containing  defamatory  matter,  and  to  keep  a 
copy  of  the  letter,  he  had  better  make  the  copy  himself."    Lopes,  L. 
J.,  said :  "  It  is  said  business  cannot  be  carried  on  if  merchants  may 
not  employ  their  clerks  to  write  letters  for  them  in  the   ordinary 
course  of  business.     I  think  the  answer  to  this  is  very  simple.    I  have 
never  yet  heard  that  it  is  in  the  usual  course  of  a  merchant's  business 
to  write  letters  containing  defamatory  statements.     If  a  merchant 
has  occasion  to  write  such  a  letter,  he  must  write  it  himself  and  copy 
it  himself,  or  he  must  take  the  consequences."     Kay,  L.  J.,  said: 
"  The  consequence  of  sucli  an  alteration  in  the  law  of  libel  would  be 
this,  that  any  merchant  or  solicitor  who  desired  to  write  a  libel  con- 
cerning any  person  would  be  privileged  to  communicate  the  libel  to 
any  agent  he  pleased  if  it  was  in  the  ordinary  course  of  his  business. 
That  would  be  an  extraordinary  alteration  of  the  law,  and  it  would 
enable  people  to  defame  others  to  an  alarming  extent."     We  M'ere 
referred  to  Boxsius  v.  Goblet  Freres   (1894),  1  Q.  B.  Div.  843,  as 
evincing  a  disposition  to  qualify  the  rule  in  Pullman  v.  Hill,  but  we 
cannot  discover  such  disposition,  and  if  we  could,  we  should  not  be 
inclined  to  follow  it.     Tiicre  the  libellous  letter  was  dictated  by  a 


CHAP.    XII.]  SLANDEK    AND   LIBEL.  431 

solicitor,  acting  in  behalf  of  and  at  the  direction  of  his  client,  and 
copies  were  made  as  in  the  ease  mentioned.  The  court  distinguished 
the  case  very  clearly  from  Pullman  v.  Hill,  holding,  through  two  of 
the  same  judges,  that  the  solicitor  owed  to  his  client  the  duty  to  net 
on  his  instructions,  and  that  if  the  solicitor  had  communicated 
directl}''  with  the  plaintift',  the  communication  would  have  been  priv- 
ileged, and  that  he  could  discharge  that  duty,  as  he  did  other  business 
of  the  office,  in  the  ordinary  way,  without  losing  the  privilege.  But 
there  was  no  question  of  privilege  in  Pullman  v.  Hill,  and  there  is 
none  here,  as  the  appellant  owed  no  duty  in  the  matter  to  any  one. 
The  typewriter  had  no  conceivable  interest  in  hearing  or  seeing  the 
letters,  and  there  could  be,  therefore,  no  privilege  between  her  and 
the  appellant.  In  Owen  v.  Ogilvie  Pub.  Co.,  32  App.  Div.  465,  the 
alleged  libellous  letter  relating  to  the  business  of  a  corporation, 
was  dictated  by  its  manager  to  its  stenographer,  who  wrote  it  out 
in  shorthand,  copied  it  upon  a  typewriter,  and  mailed  it.  The  man- 
ager and  stenographer  were  held  to  be  servants  of  a  common  master, 
and  to  be  engaged  in  the  performance  of  duties  which  their  re- 
spective employments  required,  and  that  under  such  circumstances 
the  stenographer  should  not  be  regarded  as  a  third  person,  in  the 
sense  that  either  the  dictation  or  the  subsequent  reading  should 
be  regarded  as  a  publication  by  the  corporation.  The  English  cases 
mentioned  were  not  referred  to,  but  the  Court  nevertheless  said :  "  It 
may  be  that  the  dictation  to  the  stenographer  and  her  reading  of  the 
letter  would  constitute  a  publication  of  the  same  by  the  person  dic- 
tating it,  if  the  relation  existing  between  the  manager  and  the  copyist 
was  that  of  master  and  servant,  and  the  letter  be  held  not  to  be  privi- 
leged." Upon  the  exact  question  here  involved,  the  above  extract  from 
the  opinion  in  that  case  seems  to  afford  slender  support  to  the  appel- 
lant's contention,  and  what  it  does  decide  is  not  in  accord  with  the 
views  expressed  by  this  court  in  Carter  v.  Machine  Co.,  51  Md.  294, 
in  which  Judge  Alvey  said  that  it  would  seem  to  be  now  clear,  what- 
ever may  have  been  the  former  state  of  judicial  opinion  upon  the  siib- 
ject,  that  corporations  are  liable  for  all  acts,  whether  willful  or  mali- 
cious, of  their  agents  or  servants,  done  in  the  course  of  their  employ- 
ment, and  that  actions  for  such  injuries,  including  libel,  could  be 
sustained  against  corporations  in  any  case  where,  under  similar  cir- 
cumstances, such  actions  could  be  sustained  against  individuals  for 
the  acts  of  their  servants.  It  is  true  that  that  case  was  not  an  action 
for  libel,  but  it  sufficiently  indicates  that  this  Court  would  not  be  astute 
to  find  reasons  for  relieving  corporations  from  liability  in  libel  cases 
for  want  of  technical  publication.  We  think,  for  the  reasons  given 
above,  that  the  defendant's  1st  prayer  was  properly  rejected. 

Apart  from  the  question  of  publication,  the  defendant's  2d  and  3d 
prayer  raise  the  additional  question  whetlier,  under  the  pleadings  in 
this  case,  the  action  must  not  have  been  for  slander,  instead  of  libel. 


432  GAMBRILL    V.    SCHOOLEY.  [CHAP.    XII. 

but  we  have  no  difficulty  on  this  point.  We  have  no  doubt  that  the 
dictation  of  these  letters  to  the  stenographer  was  the  publication  of  a 
slander,  for  which,  if  nothing  further  had  been  done  by  either,  an 
action  of  slander  could  have  been  maintained,  but  we  have  no  more 
doubt  that  the  stenographic  notes,  the  typewritten  copy  and  the  letter- 
press copy  constituted  the  publication  of  a  libel,  and  that  either 
slander  or  libel  could  be  maintained,  as  the  appellee  should  elect. 
This  conclusion,  we  think,  necessarily  follows  from  what  we  have 
already  said,  without  more  formally  stating  the  reasons,  and  our 
conclusion  is  not  shaken  by  Mr.  Odgers'  criticism  of  the  decision  in 
Pullman  v.  Hill  upon  the  form  of  action,  to  be  found  on  page 
174  of  his  last  edition.  We  therefore  think  the  defendant's  2d 
and  3d  prayers  were  properly  rejected,  not  only  for  the  reasons  now 
given,  but  for  those  applicable  to  defendant's  1st  prayer,  and  that  the 
plaintiff's  31/2  and  4i/^  prayers  were  for  the  same  reasons  properly 
granted.  The  plaintiff's  ]st  and  2d  prayers  were  not  questioned  at 
the  argument  and  are  so  clearly  correct  as  to  require  no  notice.  The 
plaintiff's  5th  prayer  was  also  properly  granted  for  reasons  which 
will  appear  when  we  come  to  consider  the  defendant's  9th  prayer. 

The  defendant's  9th  prayer  was  properly  rejected,  because  it  pre- 
cluded the  jury  from  including  in  their  verdict  any  allowance  what- 
ever for  exemplary  or  punitive  damages.^  Whenever  the  words 
charged  in  an  action  for  slander  or  libel  are  actionable  per  se,  as  in 
this  case,  the  damages  are  exclusively  within  the  sound  discretion  of 
the  jury.  13  Am.  &  Eng.  Enc.  Law,  432 ;  Tripp  v.  Thomas,  3  Barn. 
&  C.  427;  Marks  v.  Jacobs,  76  Ind.  216;  Nolan  v.  Traber,  49  Md.  470; 
Negley  v.  Farrow,  60  Md.  148.  Whether  exemplary  damages  shall  be 
given  or  not,  is  in  all  cases  for  the  jury.  Jerome  v.  Smith,  48  Vt. 
230;  Boardman  v.  Goldsmith,  Id.  403.  The  assessment  of  damages 
is  peculiarly  the  province  of  a  jury  in  an  action  for  libel.  The  dam- 
ages in  such  an  action  are  not  limited  to  the  amount  of  pecuniary 
loss  which  the  plaintiff  is  able  to  prove.  Davis  v.  Shepstone,^  11  App. 
Cas.  191,  per  Lord  Herschell.  The  jury  must  not  be  restricted  by  a 
direction  not  to  give  such  damages.  De  Vaughn  v.  Heath,  37  Ala. 
595.  The  plaintiff's  5th  prayer  is  in  accord  with  these  principles 
and  was  therefore  properly  granted.  We  cannot,  however,  avoid  tlio 
conclusion  that  there  was  error  in  the  rejection  of  the  defendant's 
15th  prayer,  which  asked  that  the  jury  be  instructed,  if  the  defendant 
honestly  and  in  good  faith  believed  the  statements  contained  in  tlie 
letters  to  be  true,  and  had  grounds  for  such  belief  sufficient  to  satisfy 
an  ordinarily  prudent  and  cautious  man  that  such  statements  were 
true,  then  the  jury  might  take  into  consideration  all  the  circumstances 
of  the  case,  and  in  the  exercise  of  their  discretion,  award  to  the  plain- 
tiff nominal  damages  merely.     This  prayer  is  very  carefully  guarded 

1  Rpfi  Mrrh    Hev.  Laws,  ch.  17.3,  §02. 
*  I'OBt,  p.  470. 


CHAP.   XII.]  SLANDER   AND    LIBEL.  433 

by  the  requirement  to  find  honest  belief  of  the  truth  of  the  charges, 
and  of  reasonable  ground  for  such  belief,  and  in  its  conclusion  ib 
substantially  the  converse  of  the  proposition  contained  in  the  plain- 
tiff's 5th  prayer,  which  we  have  said  was  properly  granted.  By  the 
rejection  of  the  defendant's  15th  prayer,  the  jury  were  practically 
told  they  must  give  exemplary  damages,  and  were  absolutely  refused 
the  discretion  to  withhold  them.  But  in  no  case  has  a  plaintiff  any 
legal  right  to  exemplary  damages.  Such  damages  depend  upon  the 
case  and  evidence  and  finding  of  the  jury.  Jerome  v.  Smith,  supra. 
Where  there  is  evidence  of  circumstances  sufficient  to  uphold  a  verdict 
for  exemplary  damages,  the  question  whether  they  shall  be  given  or 
not  is  one  for  the  jury.  Boardman  v.  Goldsmith,  48  Vt.  403.  And 
it  is  error  to  instruct  them  they  must  give  exemplary  damages.  Sedg. 
Dam.  333 ;  Hawk  v.  Ridgway,  33  111.  472.  The  words  used  here  being 
actionable  per  se,  although  there  was  no  proof  of  actual  and  substan- 
tial damages  sustained  by  the  publications  to  Miss  Willis  of  the  two 
letters,  the  jury  could  not  properly  have  been  deprived  of  their  dis- 
cretion to  give  exemplary  damages,  if  they  found  malice,  nor  could 
they,  on  the  other  hand,  either  by  the  granting  of  an  erroneous  in- 
struction or  the  rejection  of  a  proper  one,  be  deprived  of  their  discre- 
tion to  refuse  to  award  exemplary  damages  if  they  found  no  malice. 
For  the  error  in  the  rejection  of  the  defendant's  15th  prayer,  it  will 
be  necessary  to  reverse  the  judgment  that  a  new  trial  may  be  had. 

Judgment  reversed,   with   costs   to   appellant, 
above  and  below,  and  new  trial  awarded. 


EMMENS  V.  POTTLE. 

Court  of  Appeal  of  England,  1885.     16  Q.  B.  D.  354. 

Appeal  from  the  judgment  of  Wills,  J.,  at  the  trial  of  an  action 
with  a  jury  to  recover  damages  for  an  alleged  libel. 

The  plaintiff  by  his  statement  of  claim  ^  alleged  that  "  the  defend- 
ants on  or  about  the  11th  of  February,  1885,  at  Nos.  14  and  15  Royal 
Exchange,  in  the  city  of  London,  did  falsely  and  maliciously  publish 
of  the  plaintiff,  in  the  form  of  an  article  appearing  in  the  newspaper 
known  as  Money,  bearing  date  the  11th  of  February,  1885,  by  the 
sale  thereof  by  their  servants  or  agents,  at  such  time  and  places  afore- 
said, for  the  defendants'  benefit,  to  one  Ernest  Clarke,"  certain  words 
set  out  in  the  statement  of  claim.  The  plaintiff  alleged  that  in  con- 
sequence of  the  premises  he  had  been  and  was  greatly  injured  in  his 
credit  and  reputation,  and  he  claimed  £5,000  damages. 

By  the  statement  of  defence  (par.  1)  the  defendants  denied  that 

» Substitute  for   the  common-law   declaration. 


434  EMMENS    V.    POTTLE.  [CHAP.   XII. 

they  had  published  the  alleged  libel.  And  further  and  alternately 
(par.  2)  the  defendants  said  that  "they  are  news-vendors,  carrying 
on  a  large  business  at  14  and  15  Eoyal  Exchange,  in  the  city  of  Lon- 
don, and  as  such  news-vendors,  and  not  otherwise,  sold  copies  of  the 
said  periodical  called  Money  in  the  ordinary  course  of  their  said  busi- 
ness, and  without  any  knowledge  of  its  contents,  which  is  the  alleged 
publication/' 

The  plaintiff  by  his  reply  joined  issue  on  the  first  paragraph  of 
the  defence.  And  as  to  the  second  paragraph  of  the  defence  the 
plaintiif  said  that  "  the  allegations  therein  contained  are  bad  in  sub- 
stance and  in  law,  on  the  ground  that,  even  if  the  defendants  sold 
copies  of  the  said  periodical  without  any  knowledge  of  their  contents 
and  in  the  ordinary  course  of  their  business,  as  alleged  in  their 
defence,  still,  inasmuch  as  the  defendants  sold  the  said  copies  as  news- 
vendors  for  reward  in  that  behalf,  the  said  allegations  disclose  no 
answer  to  the  plaintiff's  claim." 

The  jury  in  answer  to  questions  put  to  them  by  the  judge  found 
that  "  the  defendants  did  not  nor  did  either  of  them  know  that  the 
newspapers  at  the  time  they  sold  them  contained  libels  on  the  plain- 
tiff; that  it  was  not  by  negligence  on  the  defendants'  part  that  they 
did  not  know  there  was  any  libel  in  the  newspapers;  and  that  the 
defendants  did  not  know  that  the  newspaper  was  of  such  a  character 
that  it  was  likely  to  contain  lil)ellous  matter,  nor  ought  they  to  have 
known  so."  The  judge  directed  the  jury  to  assess  the  damages  pro- 
visionally, and  the  judge  then  ordered  judgment  to  be  entered  for  the 
defendants,  with  costs. 

The  plaintiff  appealed. 

Lord  Esher,  M.  R.  I  am  afraid  it  will  not  be  much  satisfaction 
to  the  plaintiff,  as  I  am  going  to  decide  against  him,  for  me  to  say 
that  it  would  be  impossible  for  any  one  to  have  argued  a  case  in  better 
form  or  with  better  logic  than  he  has  argued  his  own  case. 

The  principle  is  no  doubt  a  very  important  one,  and  one  well 
worthy  of  consideration.  I  do  not  intend  to  lay  down  any  general 
rule  as  to  what  will  absolve  from  liability  for  a  libel  persons  who 
stand  in  the  position  of  these  defendants.  But  it  is  a  material  ele- 
ment in  their  position  that  the  jury  have  found  in  their  favor  as 
they  have  done.  I  agree  that  the  defendants  are  prima  facie  liable. 
They  have  handed  to  other  people  a  newspaper  in  which  there  is  a 
libel  on  the  plaintiff.  I  am  inclined  to  think  that  this  called  upon 
the  defendants  to  show  some  circumstances  which  absolve  them  from 
liability,  not  by  way  of  privilege,  but  facts  which  show  that  they  did 
not  pul)]ish  the  libel. 

We  must  first  consider  what  the  position  of  the  defendants  was. 
The  proprietor  of  a  newspaper,  who  publishes  the  paper  by  his  serv- 
ants, is  the  publisher  of  it,  and  he  is  liable  for  the  acts  of  his  servants. 
The  printer  of  the  paper  prints  it  by  his  servants,  and  therefore  he 


CHAP.    XII,"|  SLANDER   AXD    LIBEL,  435 

is  liable  for  a  libel  contained  in  it.  But  the  defendants  did  not  com- 
pose the  libel  on  the  plaintiff;  they  did  not  write  or  print  it;  they 
only  disseminated  that  which  contained  the  libel.  The  question  is 
whether,  as  such  disseminators,  they  published  the  libel.  If  they  had 
known  what  was  in  the  paper,  whether  they  were  paid  for  circulating 
it  or  not,  they  would  have  published  the  libel,  and  would  have  been 
liable  for  so  doing.  That,  I  think,  cannot  be  doubted.  But  here, 
upon  the  findings  of  the  jury,  we  must  take  it  that  the  defendants 
did  not  know  that  the  paper  contained  a  libel. 

I  am  not  prepared  to  say  that  it  would  be  sufficient  for  them  to 
show  that  they  did  not  know  of  the  particular  libel.  But  the  findings 
of  the  jury  make  it  clear  that  the  defendants  did  not  publish  the  libel. 
Taking  the  view  of  the  jury  to  be  right,  that  the  defendants  did  not 
know  that  the  paper  was  likely  to  contain  a  libel,  and  still  more  that 
they  ought  not  to  have  known  this,  which  must  mean  that  they  ought 
not  to  have  known  it,  having  used  reasonable  care  —  the  case  is  re- 
duced to  this,  that  the  defendants  were  innocent  disseminators  of  a 
thing  which  they  were  not  bound  to  know  was  likely  to  contain  a 
libel.  That  being  so,  I  think  the  defendants  are  not  liable  for  the 
libel. 

If  they  were  liable,  the  result  would  be  that  every  common  carrier 
who  carries  a  newspaper  which  contains  a  libel  would  be  liable  for  it, 
even  if  the  paper  were  one  of  which  every  man  in  England  would 
say  that  it  was  not  likely  to  contain  a  libel.  To  my  mind  the  mere 
statement  of  such  a  result  shows  that  the  proposition  from  which  it 
flows  is  unreasonable  and  unjust.  The  question  does  not  depend  on 
any  statute,  but  on  the  common  law,  and  in  my  opinion  any  propo- 
sition the  result  of  which  would  be  to  show  that  the  common  law  of 
England  is  wholly  unreasonable  and  unjust  cannot  be  part  of  the 
common  law  of  England.  I  think  therefore  that  upon  the  findings 
of  the  jury  the  judgment  for  the  defendants  is  right. 

BowEN,  L.  J.  The  jury  have  found  as  a  fact  that  the  defendants 
were  innocent  carriers  of  that  which  they  did  not  know  contained 
libellous  matter,  and  which  they  had  no  reason  to  suppose  was  likely 
to  contain  libellous  matter.  A  newspaper  is  not  like  a  fire;  a  man 
may  carry  it  about  without  being  bound  to  suppose  that  it  is  likely 
to  do  an  injury.  It  seems  to  me  that  the  defendants  are  no  more 
liable  than  any  other  innocent  carrier  of  an  article  which  he  has  no 
reason  to  suppose  likely  to  be  dangerous.  But  I  by  no  means  intend 
to  say  that  the  vendor  of  a  newspaper  will  not  be  responsible  for  a 
libel  contained  in  it  if  he  knows,  or  ought  to  know,  that  the  paper 
is  one  which  is  likely  to  contain  a  libel. 

Cotton,  L.  J.,  concurred. 

Appeal  dismissed. 


436  BEOOKER   V.    COFFIN.  [CHAP.   XH. 

BROOKER  V.  COFFIN. 
Supreme  Court,  New  York,  November,  1809.    5  Johns.  188. 

This  was  an  action  for  slander.  The  declaration  contained  two 
counts.  The  first  charged  that  on  the  1st  of  February,  1808,  at 
Schagticoke,  in  the  county  of  Rensselaer,  &c.,  for  that  whereas  the 
plaintiff  being  a  person  of  good  name,  &c.,  the  defendant  falsely  and 
maliciously  did  speak  and  utter  of  and  concerning  the  plaintiff  the 
following  false,  scandalous,  and  defamatory  words:  "She  (meaning 
the  plaintiff)  is  a  common  prostitute,  and  I  can  prove  it."  The 
second  count  charged  that  the  defendant  afterwards,  to  wit,  on  the 
day  and  year  aforesaid,  at  the  place  aforesaid,  in  a  certain  other  dis- 
course, &c.,  did  falsely  and  maliciously  speak  and  utter  the  following 
false,  scandalous,  and  defamatory  words,  to  wit,  "  She  (meaning  the 
plaintiff)  was  hired  to  swear  the  child  on  me  (meaning  the  plaintiff 
was  hired  falsely  and  maliciously  to  swear  a  certain  child  on  the  de- 
fendant). She  (meaning  the  plaintiff)  has  had  a  child  before  this 
(meaning  before  this  child,  or  the  child  which  the  said  defendant 
had  before  said  the  said  Nancy  had  been  hired  to  swear  on  him), 
when  she  went  to  Canada  (meaning  a  certain  time  when  the  plaintiff 
had  been  at  Canada).  She  (meaning  the  plaintiff)  would  come 
damned  nigh  going  to  the  State  prison "  (meaning  that  the  said 
plaintiff  was  guilty  of  such  enormous  and  wicked  crimes  as  would, 
if  punished  according  to  the  laws  and  statutes  in  such  cases  made  and 
provided,  condemn  her  to  infamous  punishment  in  the  State  prison). 
Whereas,  in  truth,  &c. 

There  was  a  general  demurrer  to  the  first  count,  and  a  special 
demurrer  to  the  second  count  and  joinder. 

Spencer,  J.  The  first  count  is  for  these  words,  "  she  is  a  common 
prostitute,  and  I  can  prove  it ; "  and  the  question  arises,  whether 
speaking  these  words  gives  an  action  without  alleging  special  damages. 
By  the  statute  (1  R.  L.  124),  common  prostitutes  are  adjudged  dis- 
orderly persons,  and  are  liable  to  commitment  by  any  justice  of  the 
peace,  upon  conviction,  to  the  bridewell  or  house  of  correction,  to  be 
kept  at  hard  labor  for  a  period  not  exceeding  sixty  days,  or  until  the 
next  general  sessions  of  the  peace.  It  has  been  supposed  that,  there- 
fore, to  charge  a  woman  with  being  a  common  prostitute,  was  charging 
her  with  such  an  offence  as  would  give  an  action  for  the  slander.  Tlie 
same  statute  which  authorizes  the  infliction  of  imprisonment  on  com- 
mon prostitutes,  as  disorderly  persons,  inflicts  the  same  punishment 
for  a  great  variety  of  acts,  the  commission  of  which  renders  persons 
liable  to  be  considen^d  disorderly;  and  to  sustain  this  action  would  be 
going  the  whole  length  of  saying,  that  every  one  charged  with  any 
of  the  acts  prohibited  by  that  statute  would  be  entitled  to  maintain 


CHAP.    XII.]  SLANDER    AND   LIBEL.  437 

an  action  for  defamation.  Among  otlicrs,  to  charge  a  person  with 
pretending  to  tell  fortunes,  would,  if  this  action  is  sustained,  be  ac- 
tionable. Upon  the  fullest  consideration,  we  are  inclined  to  adopt 
this  as  the  safest  rule,  and  one  which,  as  we  think,  is  warranted  by 
the  cases.  In  case  the  charge,  if  true,  will  subject  the  party  charged, 
to  an  indictment  for  a  crime  involving  moral  turpitude,  or  subject 
him  to  an  infamous  punishment,  then  the  words  will  be  in  themselves 
actionable;  and  Baron  Comyns  considers  the  test  to  be  whether  the 
crime  is  indictable  or  not.  1  Com.  tit.  Action  on  the  Case  for  Defama- 
tion, F.  20.  There  is  not,  perhaps,  so  much  uncertainty  in  the  law 
upon  any  subject,  as  when  words  shall  be  in  themselves  actionable. 
From  the  contradiction  of  cases,  and  the  uncertainty  prevailing  on 
this  head,  the  court  think  they  may,  without  overleaping  the  bounds 
of  their  duty,  lay  down  a  rule  which  will  conduce  to  certainty,  and 
they  therefore  adopt  the  rule  I  have  mentioned  as  the  criterion.  In 
our  opinion,  therefore,  the  first  count  in  the  declaration  is  defective. 
The  second  count  is  for  saying  of  the  plaintiff,  "  she  was  hired  to 
swear  the  child  on  me ;  she  has  had  a  child  before  this  when  she  went 
to  Canada ;  she  would  come  damned  near  going  to  the  State  prison." 
These  words  are  laid  as  spoken  at  one  time;  if,  then,  any  of  them 
are  actionable,  it  is  sufficient.  The  innuendoes  enlarge  their  meaning, 
and  are  not  justified.  One  of  them  avers  that  the  defendant  meant 
that  the  plaintiff  was  hired,  falsely  and  maliciously,  to  swear  the 
child  on  the  defendant;  and  another  innuendo,  in  explaining  the 
words,  "  she  would  come  damned  near  going  to  State  prison,"  alleges 
that  the  defendant  meant  that  the  plaintiff  was  guilty  of  such  enor- 
mous crimes  as  would,  if  punished  according  to  the  laws,  &c.,  condemn 
her  to  infamous  punishment  in  the  State  prison.  Now  I  do  not  per- 
ceive that  the  charge  at  all  warrants  the  inference  that  the  plaintiff 
had  been  guilty  of  perjury;  and  the  cases  of  Hopkins  v.  Beedle,  1 
Caines,  347 ;  Stafford  v.  Green,  1  Johns.  Eep.  505 ;  and  Ward  v.  Clark, 
2  Johns.  Eep.  11,  are  authorities  against  sustaining  this  case. 

The  defendant  must  therefore  have  judgment. 


POLLARD  V.  LYON". 

Supreme  Court  of  the  United  States,  October,  1875.    91  U.  S.  225. 

The  case  is  stated  in  the  opinion. 

Mr.  Justice  Clifford.  Words  both  false  and  slanderous,  it  is 
alleged,  were  spoken  by  the  defendant  of  the  plaintiff;  and  she  sues 
in  an  action  on  the  case  for  slander  to  recover  damages  for  the  injury 
to  her  name  and  fame. 


438  POLLAllD   V.    LYON.   ,  [CHAP.   XII. 

Controversies  of  the  kind,  in  their  legal  aspect,  require  pretty 
careful  examination;  and,  in  view  of  that  consideration,  it  is  deemed 
proper  to  give  the  entire  declaration  exhibited  in  the  transcript,  which 
is  as  follows :  — 

"  That  the  defendant,  on  a  day  named,  speaking  of  the  plaintiff, 
falsely  and  maliciously  said,  spoke,  and  published  of  the  plaintiff  the 
words  following,  '  I  saw  her  in  bed  with  Captain  Denty.'  That  at 
another  time,  to  wit,  on  the  same  day,  the  defendant  falsely  and 
maliciously  spoke  and  published  of  the  plaintiff  the  words  following, 
'  I  looked  over  the  transom-light  and  saw  Mrs.  Pollard,'  meaning  the 
plaintiff,  '  in  bed  with  Captain  Denty ; '  whereby  the  plaintiff  has 
been  damaged  and  injured  in  her  name  and  fame,  and  she  claims 
damages  therefor  in  the  sum  of  ten  thousand  dollars." 

^^^lether  the  plaintiff  and  defendant  are  married  or  single  persons 
does  not  appear ;  nor  is  it  alleged  that  they  are  not  husband  and  wife, 
nor  in  what  respect  the  plaintiff  has  suffered  loss  beyond  what  may  be 
inferred  from  the  general  averment  that  she  had  been  damaged  and 
injured  in  her  name  and  fame. 

Service  was  made,  and  the  defendant  appeared  and  pleaded  the 
general  issue;  which  being  joined,  the  parties  went  to  trial;  and 
the  jury,  under  instructions  of  the  court,  found  a  verdict  in  favor 
of  the  plaintiff  for  the  whole  amount  claimed  in  the  declaration. 
None  of  the  other  proceedings  in  the  case,  at  the  special  term,  require 
any  notice,  except  to  say  that  the  defendant  filed  a  motion  in  arrest  of 
judgment,  on  the  ground  that  the  words  set  forth  in  the  declaration 
are  not  actionable,  and  because  the  declaration  does  not  state  a  cause 
of  action  which  entitles  the  plaintiff  to  recover ;  and  the  record  shows 
that  the  court  ordered  that  the  motion  be  heard  at  general  term  in  the 
first  instance.  Both  parties  appeared  at  the  general  term,  and  were 
fully  heard ;  and  the  court  sustained  the  motion  in  arrest  of  judg- 
ment, and  decided  that  the  declaration  was  bad  in  substance.  Judg- 
ment was  subsequently  rendered  for  the  defendant,  and  the  plaintiff 
sued  out  the  present  writ  of  error. 

Definitions  of  slander  will  afford  very  little  aid  in  disposing  of 
any  question  involved  in  this  record,  or  in  any  other,  ordinarily  aris- 
ing in  such  a  controversy,  unless  where  it  becomes  necessary  to  define 
the  difference  between  oral  and  written  defamation,  or  to  prescribe 
a  criterion  to  determine,  in  cases  where  special  damage  is  claimed, 
whetlier  the  pecuniary  injury  alleged  naturally  flows  from  the  speak- 
ing of  the  words  set  forth  in  the  declaration.  Different  definitions  of 
Blander  are  given  by  different  commentators  upon  the  subject;  but 
it  will  be  sufficient  to  say  that  oral  slander,  as  a  cause  of  action,  may 
be  divided  into  five  classes,  as  follows:  (1)  Words  falsely  spoken 
of  a  person  which  impute  to  the  party  the  commission  of  some  crim- 
inal offence  involving  moral  turpitude,  for  which  the  party,  if  the 
charge  is  true,  may  be  indicted  and  punished.      (2)   Words  falsely 


CHAP.    XII.]  SLANDER   AND   LIBEL.  439 

spoken  of  a  person  which  imputes  that  the  party  is  infected  with  some 
contagious  disease,  where,  if  the  charge  is  true,  it  would  exclude  the 
party  from  society;  or  (3)  Defamatory  words  falsely  spoken  of  a 
person,  which  impute  to  the  party  unfitness  to  perform  the  duties  of 
an  office  or  employment  of  profit,  or  the  want  of  integrity  in  the 
discharge  of  the  duties  of  such  an  office  or  employment.  (4)  De- 
famatory words  falsely  spoken  of  a  party  which  prejudice  such  party 
in  his  or  her  profession  or  trade.  (5)  Defamatory  words  falsely 
spoken  of  a  person,  which,  though  not  in  themselves  actionable,  occa- 
sion the  party  special  damage. 

Two  propositions  are  submitted  by  the  plaintiff  to  show  that  the 
court  below  erred  in  sustaining  the  motion  in  arrest  of  judgment, 
and  in  deciding  that  the  declaration  is  bad  in  substance :  (1)  That  the 
words  set  forth  in  the  declaration  are  in  themselves  actionable,  and 
consequently  that  the  plaintiff  is  entitled  to  recover,  without  averring 
or  proving  special  damage.  (2)  That  if  the  words  set  forth  are  not 
actionable  per  se,  still  the  plaintiff  is  entitled  to  recover  under  the 
second  paragraph  of  the  declaration,  which,  as  she  insists,  contains 
a  sufficient  allegation  that  the  words  spoken  of  her  by  the  defendant 
were,  in  a  pecuniary  sense,  injurious  to  her,  and  that  they  did  operate 
to  her  special  damage. 

Certain  words,  all  admit,  are  in  themselves  actionable,  because  the 
natural  consequence  of  what  they  impute  to  the  party  is  damage,  as 
if  they  import  a  charge  that  the  party  has  been  guilty  of  a  criminal 
offence  involving  moral  turpitude,  or  that  the  party  is  infected  with 
a  contagious  distemper,  or  if  they  are  prejudicial  in  a  pecuniary  sense 
to  a  person  in  office  or  to  a  person  engaged  as  a  livelihood  in  a  pro- 
fession or  trade;  but  in  all  other  cases  the  party  who  brings  an 
action  for  words  must  show  the  damage  he  or  she  has  suffered  by  the 
false  speaking  of  the  other  party. 

Where  the  words  are  intrinsically  actionable,  the  inference  or  pre- 
sumption of  law  is  that  the  false  speaking  occasions  loss  to  the  plain- 
tiff; and  it  is  not  necessary  for  the  plaintiff  to  aver  that  the  words 
alleged  amount  to  the  charging  of  the  described  offence,  for  their 
actionable  quality  is  a  question  of  law,  and  not  of  fact,  and  will  be 
collected  by  the  court  from  the  words  alleged  and  proved,  if  they 
warrant  such  a  conclusion. 

Unless  the  words  alleged  impute  the  offence  of  adultery,  it  can 
hardly  be  contended  that  they  impute  any  criminal  offence  for  which 
the  party  may  be  indicted  and  punished  in  this  district;  and  the 
court  is  of  the  opinion  that  the  words  do  not  impute  such  an  offence, 
for  the  reason  that  the  declaration  does  not  allege  that  either  the 
plaintiff  or  the  defendant  was  married  at  the  time  the  words  were 
spoken.  Support  to  that  view  is  derived  from  what  was  shown  at  the 
argument,  that  fornication  as  well  as  adultery  was  defined  as  an 
offence  by  the  provincial  statute  of  the  3d  of  June,  1715,  by  which 


440  POLLARD   V.    LYON.  [CHAP.    XII. 

it  was  enacted  tliat  persons  guilty  of  those  offences,  if  convicted, 
should  be  fined  and  punished  as  therein  provided.  Kilty's  Laws,  eh. 
xxvii.,  sects.  2,  3. 

Beyond  all  doubt,  offences  of  the  kind  involve  moral  turpitude; 
but  the  second  section  of  the  act  which  defined  the  offence  of  fornica- 
tion was,  on  the  8th  of  March,  1785,  repealed  by  the  legislature  of 
the  State.    2  Kilty,  ch.  xlvii.,  sect.  4. 

Sufficient  is  remarked  to  show  that  the  old  law  of  the  province 
defining  such  an  offence  was  repealed  by  the  law  of  the  State  years 
before  the  Territory,  included  within  the  limits  of  the  city,  was  ceded 
by  the  State  to  the  United  States;  and  inasmuch  as  the  court  is  not 
referred  to  any  later  law  passed  by  the  State,  defining  such  an  offence, 
nor  to  any  act  of  Congress  to  that  effect  passed  since  the  cession,  our 
conclusion  is  that  the  plaintiff  fails  to  show  that  the  words  alleged 
impute  any  criminal  offence  to  the  plaintiff  for  which  she  can  be 
indicted  and  punished. 

Suppose  that  is  so:  still  the  plaintiff  contends  that  the  words 
alleged,  even  though  they  do  not  impute  any  criminal  offence  to  the 
plaintiff,  are  nevertheless  actionable  in  themselves,  because  the  mis- 
conduct which  they  do  impute  is  derogatory  to  her  character,  and 
highly  injurious  to  her  social  standing. 

Actionable  words  are  doubtless  such  as  naturally  imply  damage  to 
the  party;  but  it  must  be  borne  in  mind  that  there  is  a  marked  dis- 
tinction between  slander  and  libel,  and  that  many  things  are  action- 
able when  written  or  printed  and  published  which  would  not  be 
actionable  if  merely  spoken,  without  averring  and  proving  special 
damage.  Clement  v.  Chivis,  9  Barn.  &  Cress.  174;  McClurg  v.  Eoss, 
5  Binn.  219. 

Unwritten  words,  by  all,  or  nearly  all,  the  modern  authorities, 
even  if  they  impute  immoral  conduct  to  the  party,  are  not  actionable 
in  themselves,  unless  the  misconduct  imputed  amounts  to  a  criminal 
offence,  for  which  the  party  may  be  indicted  and  punished.  Judges 
as  well  as  commentators,  in  early  times,  experienced  much  difficulty 
in  extracting  any  uniform  definite  rule  from  the  old  decisions  in  the 
courts  of  the  parent  country  to  guide  the  inquirer  in  such  an  inves- 
tigation; nor  is  it  strange  that  such  attempts  have  been  attended 
with  so  little  success,  as  it  is  manifest  that  the  incongruities  are  quite 
material,  and,  in  some  respects,  irreconcilable.  Nor  are  the  decisions 
of  the  courts  of  that  country,  even  of  a  later  period,  entirely  free 
from  that  difficulty. 

Examples  both  numerous  and  striking  are  found  in  tlio  reported 
decisions  of  the  period  last  referred  to,  of  which  only  a  few  will  be 
mentioned.  Worrls  which  of  themselves  are  actionable,  said  Lord 
Holt,  must  either  endanger  the  party's  life,  or  subject  him  to  in- 
famous punifibmont;  that  it  is  not  enough  that  the  party  may  be 
fined  and  imprisoned,  for  a  party  may  be  fined  and  imprisoned  for 


CHAP.    XII.]  SLANDER   AND    LIBEL.  441 

a  common  trespass,  and  none  will  hold  that  to  say  one  has  com- 
mitted a  trespass  will  bear  an  action ;  and  he  added  that  at  least  the 
thing  charged  must  "  in  itself  be  scandalous."  Ogden  v.  Turner,  6 
Mod.  104. 

Viewed  in  any  proper  light,  it  is  plain  that  the  judge  who  gave  the 
opinion  in  that  case  meant  to  decide  that  words,  in  order  that  they 
may  be  actionable  in  themselves,  must  impute  to  the  party  a  criminal 
offence  affecting  the  social  standing  of  the  party,  for  which  the  party 
may  be  indicted  and  punished. 

Somewhat  different  phraseology  is  employed  by  the  court  in  the 
next  case  to  which  reference  will  be  made.  Onslow  v.  Home,  3  Wil. 
186.  In  that  case,  De  Grey,  C.  J.,  said  the  first  rule  to  determine 
whether  words  spoken  are  actionable  is,  that  the  words  must  contain 
an  express  imputation  of  some  crime  liable  to  punishment,  some  capi- 
tal offence  or  other  infamous  crime  or  misdemeanor,  and  that  the 
charge  must  be  precise.  Either  the  words  themselves,  said  Lord 
Kenyon,  must  be  such  as  can  only  be  understood  in  a  criminal  sense, 
or  it  must  be  shown  by  a  colloquium  in  the  introductory  part  that 
they  have  that  meaning;  otherwise  they  are  not  actionable.  Holt  v. 
Scholefield,  6  Term,  694. 

Separate  opinions  were  given  by  the  members  of  the  court  in  that 
case ;  and  Mr.  Justice  Lawrence  said  that  the  words  must  contain  an 
express  imputation  of  some  crime  liable  to  punishment,  some  capital 
offence  or  other  infamous  crime  or  misdemeanor;  and  he  denied  that 
the  meaning  of  words  not  actionable  in  themselves  can  be  extended 
by  an  innuendo.    4  Co.  17  b. 

Prior  to  that.  Lord  Mansfield  and  his  associates  held  that  words 
imputing  a  crime  are  actionable,  although  the  words  describe  the 
crime  in  vulgar  language,  and  not  in  technical  terms;  but  the  case 
does  not  contain  an  intimation  that  words  which  do  not  impute  a 
crime,  however  expressed,  can  ever  be  made  actionable  by  a  colloquium 
or  innuendo.  Colman  v.  Godwin,  3  Doug.  90;  Woolnoth  v.  ^Meadows, 
5  East,  463. 

Incongruities,  at  least  in  the  forms  of  expression,  are  observable 
in  the  cases  referred  to,  when  compared  with  each  other;  and  when 
those  cases,  with  others  not  cited,  came  to  be  discussed  and  applied 
in  the  courts  of  the  States,  the  uncertainty  as  to  the  correct  rule  of 
decision  was  greatly  augmented.  Suffice  it  to  say,  that  it  was  during 
the  period  of  such  uncertainty  as  to  the  rule  of  decision  when  a  con- 
troversy bearing  a  strong  analogy  to  the  case  before  the  court  was 
presented  for  decision  to  the  Supreme  Court  of  the  State  of  New 
York,  composed,  at  that  period,  of  some  of  the  ablest  jurists  who  ever 
adorned  that  bench. 

Allusion  is  made,  in  the  opinion  given  by  Judge  Spencer,  to  the 
great  "  uncertainty  in  the  law  upon  the  subject ; "  and,  having  also 
adverted  to  the  necessity  that  a  rule  should  be  adopted  to  remove 


442  POLLAED   V.    LYON.  [CHAP,    XII. 

that  difficult}'',  he  proceeds,  in  the  name  of  the  court,  to  say,  "  In  case 
the  charge,  if  true,  will  subject  the  party  charged  to  an  indictment 
for  a  crime  involving  moral  turpitude,  or  subject  the  party  to  an 
infamous  punishment,  then  the  words  will  be  in  themselves  action- 
able ; "  and  that  rule  has  ever  since  been  followed  in  that  State,  and 
has  been  very  extensively  adopted  in  the  courts  of  other  States. 
Brooker  v.  Coffin,  5  Johns.  190  ;i  1  Am.  Lead  Cas.  (5th  ed.)  98. 

AYlien  he  delivered  the  judgment  in  that  case,  he  was  an  associate 
justice  of  the  court;  Chancellor  Kent  being  the  chief  justice,  and 
participating  in  the  decision.  Fourteen  years  later,  after  he  became 
chief  justice  of  the  court,  he  had  occasion  to  give  his  reasons  somewhat 
more  fully  for  the  conclusion  then  expressed.  Van  Ness  v.  Hamilton, 
19  Johns.  3G7. 

On  that  occasion  he  remarked,  in  the  outset,  that  there  exists  a 
decided  distinction  between  words  spoken  and  written  slander;  and 
proceeded  to  say,  in  respect  to  words  spoken,  that  the  words  must 
either  have  produced  a  temporal  loss  to  the  plaintifE  by  reason  of 
special  damage  sustained  from  their  being  spoken,  or  they  must 
convey  a  charge  of  some  act  criminal  in  itself  and  indictable  as  such, 
and  subjecting  the  party  to  an  infamous  punishment,  or  they  must- 
impute  some  indictable  offence  involving  moral  turpitude;  and,  in 
our  judgment,  the  rule  applicable  in  such  a  case  is  there  stated  with 
sufficient  fulness,  and  with  great  clearness  and  entire  accuracy. 

Controverted  cases  involving  the  same  question,  in  great  numbers, 
besides  the  one  last  cited,  have  been  determined  in  that  State  by  apply- 
ing the  same  rule,  which,  upon  the  fullest  consideration,  was  adopted 
in  the  leading  cases,  —  that  in  case  the  charge,  if  true,  will  subject 
the  party  charged  to  an  indictment  for  a  crime  involving  moral 
turpitude,  or  subject  the  party  to  an  infamous  punishment,  then  the 
words  will  be  in  themselves  actionable. 

Attempt  was  made  by. counsel  in  the  case  of  Widrig  v.  Oyer,  13 
Johns.  124,  to  induce  the  court  to  modify  the  rule  by  changing  the 
word  "  or "  into  "  and ; "  but  the  court  refused  to  adopt  the  sug- 
gestion, and  repeated  and  followed  the  rule  in  another  case  reported 
in  the  same  volume.  Martin  v.  Stillwell,  13  Id.  275.  See  also  Gibbs 
V.  Dewey,  5  Cowen,  503 ;  Alexander  v.  Dewey,  9  Wend.  141 ;  Young  v. 
Miller,  3  Hill,  22 ;  in  all  of  which  the  same  rule  is  applied. 

Other  cases  equally  in  point  are  also  to  be  found  in  the  reported 
decisions  of  the  courts  of  that  State,  of  which  one  or  two  more  only 
will  be  referred  to.  Bissell  v.  Cornell,  24  Wend.  354.  In  that  case, 
the  words  charged  were  fully  proved;  and  the  defendant  moved  for 
a  nonsuit,  upon  the  ground  that  the  words  were  not  in  themselves 
actionable;  but  the  circuit  judge  overruled  the  motion,  and  the  de- 
fendant excepted.  Both  parties  were  subsequently  heard  in  the 
Supreme  Court  of  the  State,  Nelson,  C.  J.,  giving  the  opinion  of  the 

»Ante,  p.  436. 


CHAT.   XII.]  SLANDER   AND   LIBEL.  443 

court,  in  which  it  was  held  timt  the  words  were  actionable;  and  the 
reason  assigned  for  the  conclusion  is,  that  the  words  impute  an  in- 
dictable offence  involving  "moral  turpitude. 

Defamatory  words  to  be  actionable  per  se,  say  that  court,  must 
impute  a  crime  involving  moral  turpitude  punishable  by  indictment. 
It  is  not  enough  that  they  impute  immorality  or  moral  dereliction 
merely,  but  the  offence  charged  must  be  also  indictable.  At  one  time, 
said  the  judge  delivering  the  opinion,  it  was  supposed  that  the  charge 
should  be  such,  as,  if  true,  would  subject  the  party  charged  to  an 
infamous  punishment;  but  the  Supreme  Court  of  the  State  refused 
so  to  hold.  Widrig  v.  Oyer,  13  Johns.  124;  Wright  v.  Page,  3  Keyes, 
583. 

Subject  to  a  few  exceptions,  it  may  be  stated  that  the  courts  of 
other  States  have  adopted  substantially  the  same  rule,  and  that  most 
of  the  exceptional  decisions  are  founded  upon  local  statutes  defining 
fornication  as  a  crime,  or  providing  that  words  imputing  incontinence 
to  an  unmarried  female  shall  be  construed  to  impute  to  the  party 
actionable  misconduct. 

Without  the  averment  and  proof  of  special  damage,  says  Shaw,  C. 
J.,  the  plaintiff,  in  an  action  on  the  case  for  slander,  must  prove  that 
the  defendant  uttered  language  the  effect  of  which  was  to  charge  the 
plaintiff  with  some  crime  or  offence  punishable  by  law.  Bunnell  v. 
Fiske,  11  Met.  552. 

Speaking  of  actions  of  the  kind,  Parker,  C.  J.,  said  that  words 
imputing  crime  to  the  party  against  whom  they  are  spoken,  which, 
if  true,  would  expose  him  to  disgraceful  punishment,  or  imputing 
to  him  some  foul  and  loathsome  disease  which  would  expose  him  to 
the  loss  of  his  social  pleasures,  are  actionable,  without  any  special 
damage;  while  words  perhaps  equally  offensive  to  the  individual  of 
whom  they  are  spoken,  but  which  impute  only  some  defect  of  moral 
character,  are  not  actionable,  unless  a  special  damage  is  averred,  or 
unless  they  are  referred,  by  what  is  called  a  colloquium,  to  some 
office,  business,  or  trust  which  would  probalily  be  injuriously  affected 
by  the  truth  of  such  imputations.    Chaddock  v.  Briggs,  13  Mass.  253. 

Special  reference  is  made  to  the  case  of  Miller  v.  Parish,  8  Pick. 
385,  as  authority  to  support  the  views  of  the  plaintiff;  but  the  court 
here  is  of  the  opinion  that  it  has  no  such  tendency.  What  the  court 
in  that  case  decided  is,  that  whenever  an  offence  is  imputed,  which,  if 
proved,  may  subject  the  party  to  punishment,  though  not  ignominious, 
but  which  brings  disgrace  upon  the  party  falsely  accused,  such  an 
accusation  is  actionable ;  which  is  not  different  in  principle  from  the 
rule  laid  down  in  the  leading  case,  —  that  if  the  charge  be  such,  that 
if  true,  it  will  subject  the  party  falsely  accused  to  an  indictment  for 
a  crime  involving  moral  turpitude,  then  the  words  will  be  in  them- 
selves actionable. 

Early  in  her  history,  the  legislature  of  ]\Iassachusetts  defined  the 


444  POLLARD    V.    LYON.  [CHAP,    XII. 

act  of  fornication  as  a  criminal  offence,  punishable  by  a  fme,  and 
which  may  be  prosecuted  by  indictment ;  and,  if  the  person  convicted 
does  not  pay  the  fine,  he  or  she  may  be  committed  to  the  common 
jail  or  to  the  house  of  correction.  None  of  the  counts  in  that  case 
contained  an  averment  of  special  damage;  but  the  court  held,  that, 
inasmuch  as  the  words  alleged  imputed  a  criminal  offence  which  sub- 
jected the  party  to  punishment  involving  disgrace,  the  words  were 
actionable;  and  it  is  not  doubted  that  the  decision  is  correct.  Ex- 
actly the  same  question  was  decided  by  the  same  court  in  the  same 
way  twenty-five  years  later.  Kenney  v.  Laughlin,  3  Gray,  5 ;  ^  1  Stat. 
Mass.  1786,  293.  Other  State  courts,  where  the  act  of  fornication  is 
defined  by  statute  as  an  indictable  offence,  have  made  similar  deci- 
sions; but  such  decisions  do  not  affect  any  question  involved  in  this 
investigation.  Vandcrip  v.  Eoe,  23  Penn.  St.  182;  1  Am.  Lead  Cas. 
(5th  ed.)  103;  Simons  v.  Carter,  32  N.  H.  459;  Sess.  Laws  (Penn. 
1860),  382;  Purdon's  Dig.  1824,  313. 

That  the  words  uttered  import  the  commission  of  an  offence  say  the 
court,  cannot  be  doubted.  It  is  the  charge  of  a  crime  punishable  by 
law,  and  of  a  character  to  degrade  and  disgrace  the  plaintiff,  and 
exclude  her  from  society.  Though  the  imputation  of  crime,  said 
Bigelow,  J.,  is  a  test,  whether  the  words  spoken  do  amount  to  legal 
slander,  yet  it  does  not  take  away  their  actionable  quality  if  they  are 
so  used  as  to  indicate  that  the  party  has  suffered  the  penalty  of  the 
law,  and  is  no  longer  exposed  to  the  danger  of  punishment.  Krebs  v. 
Oliver,  12  Gray,  242;  Fowler  v.  Dowdney,  2  M.  &  Rob.  119. 


Much  discussion  of  the  cases  decided  in  the  Supreme  Court  of 
Pennsylvania  is  quite  unnecessary,  as  we  have  the  authority  of  that 
court  for  saying  that  the  leading  cases  establish  the  principle,  that 
words  spoken  of  a  private  person  are  only  actionable  when  they  con- 
tain a  plain  imputation,  not  merely  of  some  indictable  offence,  but 
one  of  an  infamous  cliaracter,  or  subject  to  an  infamous  or  disgrace- 
ful punishment;  and  that  an  innuendo  cannot  alter,  enlarge,  or 
extend  their  natural  and  obvious  meaning,  but  only  explain  something 
already  sufficiently  averred,  or  make  a  more  explicit  application  of 
that  which  might  otherwise  be  considered  ambiguous  to  tlio  material 
subject-matter  properly  on  the  record,  by  the  way  of  averment  or  col- 
loquium. Gosling  V.  Morgan,  32  Penn.  St.  275;  Shaffer  v.  Kinster, 
1  Binn.  537;  McClurg  v.  Ross,  5  Id.  218;  Andres  v.  Koppenheafer, 
3  S.  &  R.  255. 

State  courts  have  in  many  instances  decided  that  words  are  in 
themselves  actionable  whenever  a  criminal  offence  is  charged,  which, 
if  proved,  may  subject  the  party  to  punishment,  though  not  igno- 
minious, and  which  brings  disgrace  upon  the  complaining  party;   but 

'  l'r<>\)ti\>\y  Kenney  v.  McLaughlin,  5  Gray  3,  is  intended. 


CHAP.   XII.]  SLANDER   AND   LIBEL.  445 

most  courts  agree  that  no  words  arc  actionable  per  se  unless  they 
impute  to  the  party  some  criminal  ofTence  which  may  be  visited  by 
punishment  either  of  an  infamous  character,  or  which  is  calculated 
to  affect  the  party  injuriously  in  his  or  her  social  standing.  Buck  v. 
Hersey,  31  Me.  558;  Mills  v.  Wimp.  10  B.  Monr.  417;  Perdue  v.  Bur- 
nett, Minor,  138;  Demarest  v.  Haring,  6  Cow.  76;  Townsend  on 
Slander,  sect.  154;  1  Wendell's  Stark,  on  Slander,  43;  Iledway  v.  Gray, 
31  Vt.  297. 

Formulas  differing  in  phraseology  have  been  prescribed  by  different 
courts;  but  the  annotators  of  the  American  Leading  Cases  say  that  the 
Supreme  Court  of  the  State  of  New  York,  in  the  case  of  Brooker  v. 
Coffin,  appear  "  to  have  reached  the  true  principle  applicable  to  the 
subject ; "  and  we  are  inclined  to  concur  in  that  conclusion,  it  be- 
ing understood  that  words  falsely  spoken  of  another  may  be  actionable 
per  se  when  they  impute  to  the  party  a  criminal  offence  for  which 
the  party  may  be  indicted  and  punished,  even  though  the  offence  is 
not  technically  denominated  infamous,  if  the  charge  involves  moral 
turpitude,  and  is  such  as  will  affect  injuriously  the  social  standing 
of  the  party.     1  Am.  Lead  Cas.  (5th  ed.)  98. 

Comments  are  made  in  respect  to  verbal  slander  under  several 
heads,  one  of  which  is  entitled  defamatory  words  not  actionable  with- 
out special  damage ;  and  the  commentator  ^  proceeds  to  remark  that 
mere  vituperation  and  abuse  by  word  of  mouth,  however  gross,  is 
not  actionable  unless  it  is  spoken  of  a  professional  man  or  tradesman 
in  the  conduct  of  his  profession  or  business.  Instances  of  a  very 
striking  character  are  given,  every  one  of  which  is  supported  by  the 
authority  of  an  adjudged  case.  Lumby  v.  Allday,  1  Crompt.  &  Jer. 
301 ;  2  Barnet  v.  Allen,  3  H.  &  N.  376. 

Even  the  judges  holding  the  highest  judicial  stations  in  that 
country  have  felt  constrained  to  decide,  that  to  say  of  a  married  fe- 
male that  she  was  a  liar,  an  infamous  wretch,  and  that  she  had  been 
all  but  seduced  by  a  notorious  libertine,  was  not  actionable  without 
averring  and  proving  special  damage.  Lynch  v.  Knight,  9  H.  of  L. 
Cas.  594. 

Finally,  the  same  commentator  states  that  words  imputing  to  a 
single  woman  that  she  gets  her  living  by  imposture  and  prostitution, 
and  that  she  is  a  swindler,  are  not  actionable,  even  when  special 
damage  is  alleged,  unless  it  is  proved,  and  the  proposition  is  fully 
sustained  by  the  cases  cited  in  its  support.  Welby  v.  Elston,  8  M.  G. 
&  S.  142;  Addison  on  Torts  (3d  ed.),  788;  Townsend  on  Slander, 
sects.  172  and  note,  516-518. 

Words  actionable  in  themselves,  without  proof  of  special  damage, 
are  next  considered  by  the  same  commentator.    His  principal  proposi- 

» Addison  on  Torts   (3d  ed.)  765;    (4th  ed.)   954. 
•Post,  p.  447. 


446  POLLAED  V.   LYON.  [CHAP.  XII. 

tion  under  that  head  is  that  words  imputing  an  indictable  offence  are 
actionable  per  se  without  proof  of  any  special  damage,  giving  as  a 
reason  for  the  rule  that  they  render  the  accused  person  liable  to  the 
pains  and  penalties  of  the  criminal  law.  Beyond  question,  the 
authorities  cited  by  the  author  support  the  proposition,  and  show 
that  such  is  the  rule  of  decision  in  all  the  courts  of  that  country 
having  jurisdiction  in  such  cases.  Heming  v.  Power,  10  Mees.  & 
Wels.  570 ;  Alfred  v.  Farlow,  8  Q.  B.  854 ;  Edsall  v.  Eussell,  5  Scott, 
N.  E.  801;  Brayne  v.  Cooper,  5  Mees.  &  Wels.  250;  Barnet  v.  Allen, 
3  H.  &  N.  378;  Davies  v.  Solomon,  41  Law  Jour.  Q.  B.  11;  Eoberts  v. 
Roberts,  5  B.  &  S.  389 ;  Perkins  v.  Scott,  1  Hurlst.  &  Colt.  158. 

Examined  in  the  light  of  these  suggestions  and  the  authorities  cited 
in  their  support,  it  is  clear  that  the  proposition  of  the  plaintiff,  that 
the  words  alleged  are  in  themselves  actionable,  cannot  be  sustained. 

Concede  all  that,  and  still  the  plaintiff  suggests  that  she  alleges  in 
the  second  paragraph  of  her  declaration  that  she  "  has  been  damaged 
and  injured  in  her  name  and  fame ; "  and  she  contends  that  that 
averment  is  sufficient,  in  connection  with  the  words  charged,  to  entitle 
her  to  recover  as  in  an  action  of  slander  for  defamatory  words  with 
averment  of  special  damage. 

By  special  damage  in  such  a  case  is  meant  pecuniary  loss ;  but  it  is 
well  settled  that  the  term  may  also  include  the  loss  of  substantial 
hospitality  of  friends.  Moore  v.  Meagher,  1  Taunt.  43;  Williams  v. 
Hill,  19  Wend.  306. 

Illustrative  examples  are  given  by  the  text-writers  in  great  num- 
bers, among  which  are  loss  of  marriage,  loss  of  profitable  employment, 
or  of  emoluments,  profits,  or  customers ;  and  it  was  very  clearly  settled 
that  a  charge  of  incontinence  against  an  unmarried  female,  whereby 
she  lost  her  marriage,  was  actionable  by  reason  of  the  special  damage 
alleged  and  proved.  Davis  v.  Gardiner,  4  Co.  16  b,  pi.  11;  Eeston  v. 
Pomfreicbt,  Cro.  Eliz.  639. 

Doubt  upon  that  subject  cannot  be  entertained:  but  the  special 
damage  must  be  alleged  in  the  declaration,  and  proved;  and  it  is 
not  sufficient  to  allege  that  the  plaintiff  "  has  been  damaged  and  in- 
jured in  her  name  and  fame,"  which  is  all  that  is  alleged  in  that  re- 
gard in  the  case  before  the  court.  Hartley  v.  Herring,  8  Term,  133; 
Addison  on  Torts,  805;  Hilliard  on  Eemedies  (2d  ed.),  622;  Beach 
V.  Eanney,  2  Hill,  309. 

Tested  by  tbese  considerations,  it  is  clear  that  the  decision  of  the 
court  lj(jlovv,  that  the  declaration  is  bad  in  substance,  is  correct. 

Judgment  affirmed. 


CHAP.   XII.]  SLANDER   AND    LIBEL.  447 


LUMBY  V.  ALLDAY. 

Court  of  Exchequer  of  England,  Hillary   Term,  1831.     1   Tyrw.  217;    8.  c.   1 

Cromp.  &  J.  301. 

Case  for  words.  The  first  count  of  the  declaration  stated  that,  be- 
fore the  speaking  of  tlie  words,  the  plaintiff  was,  and  hitherto  has 
been,  and  still  is,  clerk  to  a  certain  incorporated  company,  to  wit,  the 
Birmingham  and  Staffordshire  Gas-Light  Company,  and,  as  such 
clerk,  had  always  behaved  himself  with  great  diligence,  industry,  and 
propriety,  and  thereby  had  acquired,  and  was  acquiring,  great  gains 
and  profits  in  his  said  situation  as  clerk  to  the  said  company;  never- 
theless, the  defendant,  well  knowing  the  premises,  but  intending  to 
bring  the  plaintiff  into  public  infamy  and  disgrace  with  and  among 
all  his  neighbors,  and  the  said  persons  composing  the  said  company, 
and  to  cause  it  to  be  suspected  and  believed  by  his  neighbors  and  sub- 
jects, and  the  persons  composing  the  said  company,  that  the  said 
plaintiff  was  of  a  bad  character  and  unfit  to  hold  his  situation  of 
clerk  to  the  said  company,  and  an  improper  person  to  be  employed  by 
the  said  company,  and  to  cause  him  to  be  deprived  of  and  lose  his 
situation,  and  to  vex,  &c.,  him  the  said  plaintiff,  on,  &c.,  at  &c.,  in 
a  certain  discourse  which  the  said  defendant  then  and  there  had  with 
the  said  plaintiff  of  and  concerning  the  said  plaintiff,  and  of  and 
concerning  the  premises,  in  the  presence  and  hearing  of  divers  good 
and  worthy  subjects  of  this  realm,  then  and  there,  in  the  presence  and 
hearing  of  the  said  last-mentioned  subjects,  falsely  and  maliciously 
spoke  and  published  of  and  concerning  the  said  plaintiff,  and  of  and 
concerning  the  premises,  these  false,  scandalous,  malicious,  and  de- 
famatory words  following;  that  is  to  say,  "You  (meaning  the  said 
plaintiff)  are  a  fellow,  a  disgrace  to  the  town,  unfit  to  hold  your  (then 
and  there  meaning  the  said  plaintiff's)  situation  (then  and  there 
meaning  the  said  situation  of  clerk  to  the  Birmingham  and  Stafford- 
shire Gas-Light  Company)  for  your  conduct  with  whores;  I  will  have 
you  in  the  '  Argus; '  you  (then  and  there  meaning  the  said  plaintiff) 
have  bought  up  all  the  copies  of  the  'Argus,'  knowing  you  (then  and 
there  meaning  the  said  plaintiff)  were  exposed ;  you  may  drown  your- 
self, for  you  (then  and  there  meaning  the  said  plaintiff)  are  not  fit 
to  live^  and  a  disgrace  to  the  situation  you  (then  and  there  meaning 
the  said  plaintiff)  hold  "  (then  and  there  meaning  the  said  situation 
of  clerk  to  the  Birmingham  and  Staffordshire  Gas-Light  Company). 

The  above  words  were  stated  witli  some  variations  in  several  other 
counts.  Plea,  general  issue.  At  the  trial  before  Alexander,  C.  B., 
at  the  Warwick  Summer  Assizes,  in  1830,  it  appeared  that  the  plaintiff 
had  for  three  years  acted  as  clerk  to  the  Birmingham  and  Stafford- 
shire Gas-Light  Company,  at  a  salary  of  £250  per  annum.    The  most 


448  LUMBY   V.   ALLDAY.  [CHAP.    XII. 

defamatory  of  the  words  laid  in  the  first  count  were  proved.  The 
"  Argus  "  was  proved  to  be  a  publication  appearing  at  Birmingham 
monthly.  No  proof  was  given  of  any  written  appointment  of  the 
plaintiff  as  clerk.  The  Chief  Baron  directed  the  jury  that  if  in  their 
opinion  the  words  used  would  probably  tend  to  injure  the  plaintiff 
in  his  office  of  clerk  he  was  entitled  to  a  verdict.  The  jury  found  a 
general  verdict  for  the  plaintiff.     Damages,  40s. 

Bayley,  B.  This  case  came  before  the  court  on  a  rule  nisi  to  enter 
a  nonsuit,  the  ground  of  which  was,  that  the  words  proved  on  the  trial 
were  not  actionable.  Two  points  were  discussd  upon  this  rule:  one, 
whether  the  words  were  actionable  or  not ;  and  the  other,  whether  this 
was  properly  a  ground  of  nonsuit. 

The  declaration  stated  that  the  plaintiff  was  clerk  to  an  incorporated 
company,  called  the  Birmingham  and  Staffordshire  Gas-Light  Com- 
pany, and  had  behaved  himself  as  such  clerk  with  great  propriety,  and 
thereby  acquired,  and  was  daily  acquiring,  great  gains;  but  that  the 
defendant,  to  cause  it  to  be  believed  that  he  was  unfit  to  hold  his  situa- 
tion, and  an  improper  person  to  be  employed  by  the  company,  and 
to  cause  him  to  be  deprived  of  his  situation,  spoke  the  words  in  the 
first  count  [which  the  learned  judge  here  read]. 

The  objection  to  maintaining  an  action  on  these  words  is,  that 
it  is  only  on  the  ground  of  the  plaintiff's  being  clerk  to  the  company 
that  they  can  be  actionable ;  that  it  is  not  alleged  that  they  are  spoken 
of  him  in  reference  to  his  character  or  conduct  as  clerk;  that  they  do 
not  from  their  tenor  import  that  they  were  spoken  with  any  such 
reference ;  and  that  they  do  not  impute  to  him  the  want  of  any  qualifi- 
cation which  a  clerk  ought  to  have,  or  any  misconduct  which  would 
make  him  unfit  to  discharge  faithfully  and  correctly  all  the  duties 
of  such  a  clerk. 

The  plaintiff  relied  on  the  rule  laid  down  by  De  Grey,  C.  J.,  in 
Onslow  V.  Home,  3  Wils.  186,  that  words  are  actionable  when  spoken 
of  one  in  an  office  of  profit  which  may  probably  occasion  the  loss  of  his 
oflBce,  or  when  spoken  of  persons  touching  their  respective  professions, 
trades,  and  businesses,  and  do  or  may  probably  tend  to  their  damage. 
The  same  case  occurs  in  Sir  AVilliam  Blackstone's  Eeports,  753,  where 
the  rule  is  expressed  to  be,  "  if  words  may  be  of  probable  ill  conse- 
quence to  a  person  in  a  trade,  or  profession,  or  office." 

The  obj(>ction  to  the  rule  as  expressed  in  both  reports  appears  to  me 
to  be,  that  the  word  "  probably  "  or  "  probable  "  is  too  indefinite  and 
loose,  and  that  unless  it  is  considered  as  equivalent  with  "having  a 
natural  tendency  to,"  and  is  confined  within  the  limits  I  have  ex- 
pressed in  stating  the  defendant's  objection,  viz.,  that  of  showing  the 
want  of  some  necessary  qualification,  or  some  misconduct  in  the  office, 
it  goes  licyond  what  tbe  authorities  warrant.  Every  authority  T  have 
been  able  to  meet  with  either  shows  the  want  of  some  general  requisite, 
as  honesty,  capacity,  fidelity,  &c.,  or  connects  the  imputation  with  the 


CHAP.   XII.]  SLANDER  AND   LIBEL.  449 

plaintiff's  office,  trade,  or  business.  Immorality  only,  however  gross,  is 
all  which  is  imputed,  as  here  charged.  As  at  present  advised,  there- 
fore, we  are  of  opinion  that  the  charge  proved  in  this  case  is  not  ac- 
tionable, because  the  imputation  it  contains  does  not  imply  a  want  of 
any  of  those  qualifications  which  a  clerk  ought  to  possess,  and  be- 
cause the  imputation  has  no  reference  to  his  conduct  as  clerk.^ 


THORLEY  V.  KEERY. 

Exchequer  Chamber  of  England,  Easter  Term,  1812.    4  Taunt.  355. 

This  was  a  writ  of  error  brought  to  reverse  a  judgment  of  tlie  Court 
of  King's  Bench.  The  plaintiff  below  declared  that  he  was  a  good, 
true,  honest,  just,  and  faithful  subject  of  the  realm,  and,  as  such,  had 
always  behaved,  and  considered  himself,  and,  until  the  committing  of 
the  several  grievances  by  the  defendant  thereinafter  mentioned,  was 
always  reputed,  esteemed,  and  accepted,  by  and  amongst  all  his  neigh- 
bors, and  other  good  and  worthy  subjects  of  this  realm,  to  whom  he 
was  in  anywise  known,  to  be  a  person  of  good  name,  fame,  and  credit, 
to  wit,  in  the  parish  of  Petersham,  in  the  county  of  Surrey,  and  also 
that  he  had  not  ever  been  guilty,  or,  until  the  time,  &c.,  been  sus- 
pected, of  the  offences  and  misconduct  thereinafter  mentioned  to  have 
been  charged  upon  and  imputed  to  him;  or  of  any  such  offences  or 
misconduct,  by  means  of  which  premises  he  had  before  the  committing 
of  the  several  grievances  deservedly  obtained  the  good  opinion  and 
credit  of  all  his  neighbors,  and  other  good  and  worthy  subjects  of 
this  realm,  to  whom  he  was  known,  to  wit,  at  Petersham;  and  also 
that,  before  and  at  the  time  of  the  committing  of  the  grievances  by 
the  defendant  below,  as  hereinafter  mentioned,  the  plaintiff  below  was 
tenant  to  the  Right  Hon.  Archibald  Lord  Douglas,  of  a  messuage  and 
premises,  with  the  appurtenances,  situate  in  the  parish  of  Petersham, 
and  he  being  desirous  and  intending  to  become  a  parishioner  of  the 
same  parish,  and  to  qualify  himself  to  attend  the  vestry  of  and  for 
such  parish,  as  such  parishioner,  agreed  with  Lord  Douglas  to  pay  the 
taxes  of  and  for  the  said  house,  which  he  so  inhabited  as  tenant  to 
Lord  Douglas;  and  also  that,  before  and  at  the  time  of  the  committing 
of  the  grievances  by  the  defendant  below  in  the  first  count  mentioned, 
the  defendant  below  was  tbe  church-warden  of  and  for  tbe  parish  of 
Petersham,  and  the  plaintiff  below,  so  being  desirous  and  intending  to 
attend  such  vestry  of  such  parish  as  such  parishioner,  had  thereupon, 
by  his  certain  note  in  writing,  given  notice  to  the  defendant  below 

I  As  to  the  other  point  in  the  case,  it  was  held  that,  as  the  speaking  of  the 
words  alleged  was  proved,  there  was  no  ground  for  a  nonsuit ;  but  liberty  was 
given  to  move  in  arrest  of  judgment. 


450  THORLEY   V.    KERRY.  [CHAP.   XII. 

of  his  agreement  with  Lord  Douglas;  yet  the  defendant  below,  well 
knowing  the  premises,  and  greatly  envying  the  happy  state  and  condi- 
tion of  the  plaintiff  below,  and  contriving,  and  wickedly  and  mali- 
ciously intending,  to  injure  him  in  his  said  good  name,  fame,  and 
credit,  and  to  bring  him  into  public  scandal,  infamy,  and  disgrace 
with  and  amongst  all  his  neighbors,  and  other  good  and  worthy  sub- 
jects of  this  kingdom,  and  to  cause  it  to  be  suspected  and  believed  by 
those  neighbors  and  subjects,  that  he  has  been  and  was  guilty  of  the 
offences  and  misconduct  hereinafter  mentioned  to  have  been  charged 
upon  and  imputed  to  him,  and  to  vex,  harass,  and  oppress  him,  at 
Petersham  aforesaid,  falsely,  wickedly,  and  maliciously  did  compose 
and  publish,  and  cause  and  procure  to  be  published  of  and  concerning 
him,  and  concerning  such  agreement  with  Lord  Douglas,  and  concern- 
ing the  said  note  in  writing,  a  certain  false,  scandalous,  malicious,  and 
defamatory  libel  in  the  form  of  a  letter  to  the  plaintiff  below,  contain- 
ing, amongst  other  things,  the  false,  scandalous,  malicious,  and  defam- 
atory and  libellous  matter  following  (accompanied  with  the  following 
amongst  other  innuendoes),  that  is  to  say,  "My  lord,  I  conceive,  as 
church-warden  (meaning  as  church-warden  of  the  parish  of  Peter- 
sham), I  have  nothing  to  say  to  any  private  agreement  with  Lord 
Douglas  and  yourself;  your  note  (meaning  the  note  sent  to  the  defend- 
ant below  by  the  plaintiff  below),  and  the  manner  it  was  conveyed  to 
me,  shows  your  lordship  still  possesses  that  perturbed  spirit  which  I  had 
hoped,  for  your  own  sake,  after  the  composition  and  publishing  of  the 
scurrilous  address  of  the  26th  August,  would  have  been  at  rest.  I  had 
before  read  the  virulent,  disrespectful,  and  ungentlemanlike  letters  to 
the  Rev.  Mr.  Marsham;  I  sincerely  pity  the  man  (meaning  the  plain- 
tiff below)  that  can  so  far  forget  what  is  due,  not  only  to  himself,  but 
to  others,  who,  under  the  cloak  of  religious  and  spiritual  reform, 
hypocritically,  and  with  the  grossest  impurity,  deals  out  his  malice, 
uncharitableness,  and  falsehoods.  N.  B.  It  was  my  intention  never 
to  have  held  or  had  communication  with  a  writer  of  anonymous  letters 
(meaning  that  the  plaintiff  below  was  a  writer  of  anonymous  letters), 
but  it  appears  I  cannot  now  avoid  it "  (thereby  meaning  that  the 
plaintiff  below  had  been  and  was  guilty  of  hypocrisy  and  dishonorable 
conduct).  There  were  other  counts  setting  out  parts  only  of  the  same 
letter;  and  the  plaintiff  below  concluded  by  averring  that  by  means  of 
the  committing  of  the  grievances  by  the  defendant  below,  the  plaintiff 
below  had  been  and  was  greatly  injured  in  his  good  name,  fame,  and 
credit,  and  brought  into  public  scandal,  infamy,  and  disgrace  with  and 
amongst  all  his  neighbors  and  other  good  and  worthy  subjects  of  this 
realm,  insomuch  that  divers  of  those  neighbors  and  subjects  to  whom 
the  innocence,  candor,  truth,  integrity,  reverence,  and  respect  of  the 
religion  of  the  plaintiff  below  was  unknown,  had,  on  occasion  of  the 
committing  of  the  said  several  grievances  by  the  defendant  below, 
from  thence  hitherto  suspected  and  believed,  and  still  did  suspect  and 


CHAP.   XII.]  SLANDER   AND    LIBEL.  451 

believe,  the  plaintiff  below  to  have  been  guilty  of  the  offences  and  im- 
proper conduct  imputed  to  him  as  aforesaid,  and  to  have  been  and 
still  to  be  guilty  of  hypocrisy,  malice,  uncharitableness,  and  false- 
hood; and  had,  by  reason  of  the  committing  of  the  several  grievances 
by  the  defendant  below,  from  thence  hitherto,  and  still  did  refuse  to 
have  any  acquaintance,  intercourse,  or  discourse  with  the  plaintiff 
below,  as  they  were  before  used  and  accustomed  to  have,  and  other- 
wise would  have  had.  And  the  plaintiff  below  had  been  and  was  by 
means  of  the  premises  otherwise  greatly  injured,  to  wit,  in  the  parish 
of  Petersham,  to  his  damage  of  £2,000.  Upon  not  guilty  pleaded, 
the  cause  was  tried  at  the  Surrey  Spring  Assizes,  1809,  when  the 
writing  of  the  letter  by  the  defendant  was  proved,  and  that  he  de- 
livered it  unsealed  to  a  servant  to  carry,  who  opened  and  read  it.  A 
verdict  was  found  for  the  plaintiff  with  £20  damages,  and  judgment 
passed  for  the  plaintiff  without  argument  in  the  court  below.  The 
plaintiff  in  error  assigned  the  general  errors. 

Mansfield,  C.  J.  This  is  a  writ  of  error,  brought  to  reverse  a 
judgment  of  the  Court  of  King's  Bench,  in  which  there  was  no  argu- 
ment. It  was  an  action  on  a  libel  published  in  a  letter,  which  the 
bearer  of  the  letter  happened  to  open.  The  declaration  has  certainly 
some  very  curious  recitals.  It  recites  that  the  plaintiff  was  tenant  to 
Archibald  Lord  Douglas  of  a  messuage  in  Petersham,  that  being  desir- 
ous to  become  a  parishioner  and  to  attend  the  vestry,  he  agreed  to  pay 
the  taxes  of  the  said  house;  that  the  plaintiff  in  error  was  church- 
warden, and  that  the  defendant  in  error  gave  him  notice  of  his  agree- 
ment with  Lord  Douglas,  and  that  the  plaintiff  in  error  intending  to 
have  it  believed  that  the  said  earl  was  guilty  of  the  offences  and  miscon- 
ducts thereinafter  mentioned  (offences  there  are  none,  misconduct 
there  may  be),  wrote  the  letter  to  the  said  earl  which  is  set  forth  in 
the  pleadings.  There  is  no  doubt  that  this  was  a  libel,  for  which  the 
plaintiff  in  error  might  have  been  indicted  and  punished;  because, 
though  the  words  impute  no  punishable  crimes,  they  contain  that  sort 
of  imputation  which  is  calculated  to  vilify  a  man,  and  bring  him,  as 
the  books  say,  into  hatred,  contempt,  and  ridicule.  For  all  words  of 
that  description  an  indictment  lies;  and  I  should  have  thought  that 
the  peace  and  good  name  of  individuals  were  sufficiently  guarded  by 
the  terror  of  this  criminal  proceeding  in  such  cases.  The  words,  if 
merely  spoken,  would  not  be  of  themselves  sufficient  to  support  an 
action.  But  the  question  now  is,  whether  an  action  will  lie  for  these 
words  so  written,  notwithstanding  such  an  action  would  not  lie  for 
them  if  spoken ;  and  I  am  very  sorry  it  was  not  discussed  in  the  Court 
of  King's  Bench,  that  we  might  have  had  the  opinion  of  all  the  twelve 
judges  on  the  point,  whether  there  be  any  distinction  as  to  the  right 
of  action  between  written  and  parol  scandal ;  for  myself,  after  having 
heard  it  extremely  well  argued,  and  especially  in  this  case,  by  Mr. 
Barnewall,   I   cannot,  upon  principle,  make  any  difference  between 


452  THORLEY   V.    KERRY.  [CHAP.    XII. 

•words  written  and  words  spoken,  as  to  tlie  right  which  arises  on  them 
of  bringing  an  action.  For  the  plaintiff  in  error  it  has  been  truly 
urged  that  in  the  old  books  and  abridgments  no  distinction  is  taken 
between  words  written  and  spoken.  But  the  distinction  has  been  made 
between  written  and  spoken  slander  as  far  back  as  Charles  the 
Second's  time,  and  the  difference  has  been  recognized  by  the  courts 
for  at  least  a  century  back.  It  does  not  appear  to  me  that  the  rights 
of  parties  to  a  good  character  are  insufficiently  defended  by  the  crim- 
inal remedies  which  the  law  gives;  and  the  law  gives  a  very  ample 
field  for  retribution  by  action  for  words  spoken  in  the  cases  of  special 
damage,  of  words  spoken  of  a  man  in  his  trade  or  profession,  of  a 
man  in  office,  of  a  magistrate  or  officer:  for  all  these  an  action  lies. 
But  for  mere  general  abuse  spoken,  no  action  lies.  In  the  arguments 
both  of  the  judges  and  counsel,  in  almost  all  the  cases  in  which  the 
question  has  been,  whether  what  is  contained  in  a  writing  is  the  sub- 
ject of  an  action  or  not,  it  has  been  considered  whether  the  words  if 
spoken  would  maintain  an  action.  It  is  curious  that  they  have  also 
adverted  to  the  question,  whether  it  tends  to  produce  a  breach  of  the 
peace;  but  that  is  wholly  irrelevant,  and  is  no  ground  for  recovering 
damages.  So  it  has  been  argued  that  writing  shows  more  deliberate 
malignity;  but  the  same  answer  suffices,  that  the  action  is  not  main- 
tainable upon  the  ground  of  the  malignity,  but  for  the  damage  sus- 
tained. So  it  is  argued  that  written  scandal  is  more  generally  diffused 
than  words  spoken,  and  is  therefore  actionable;  but  an  assertion  made 
in  a  public  place,  as  upon  the  Eoyal  Exchange,  concerning  a  merchant 
in  London,  may  be  much  more  extensively  diffused  than  a  few  printed 
papers  dispersed,  or  a  private  letter;  it  is  true  that  a  newspaper  may 
be  very  generally  read,  but  that  is  all  casual.  These  are  the  argu- 
ments which  prevail  on  my  mind  to  repudiate  the  distinction  be- 
tween written  and  spoken  scandal ;  but  that  distinction  has  been  estab- 
lished by  some  of  the  greatest  names  known  to  the  law,  —  Lord  Hard- 
wicke.  Hale,  I  believe.  Holt,  C.  J.,  and  others.  Lord  Hardwicke,  C.  J., 
especially  has  laid  it  down  that  an  action  for  a  libel  may  be  brought 
on  words  written,  when  the  words  if  spoken  would  not  sustain  it. 
Com.  Dig.  tit.  Libel,  referring  to  the  case  in  Fitzg.  122,  253,  says, 
there  is  a  distinction  between  written  and  spoken  scandal.  By  his 
putting  it  down  there,  as  he  does,  as  being  the  law,  without  making 
any  query  or  doubt  upon  it,  we  are  led  to  suppose  that  he  was  of  the 
same  opinion.  I  do  not  now  recapitulate  the  cases;  but  we  cannot,  in 
opposition  to  them,  venture  to  lay  down  at  this  day  that  no  action  can 
be  maintained  for  any  words  written,  for  which  an  action  could  not 
be  maintained  if  they  were  spoken.  Upon  these  grounds  we  think  the 
judgment  of  the  Court  of  King's  Bench  must  be  aflirmed.  The  pur- 
pose of  this  action  is  to  recover  a  compensation  for  some  damage  sup- 
posed to  l)e  sustained  by  the  plaintilT  by  reason  of  the  libel.  The 
tendency  of  the  HIk'I  to  provoke  a  breach  of  the  peace,  or  the  degree 


CHAP.    XII.]  SLANDER   AND    L1J3LL.  453 

of  malignity  which  actuates  the  writer,  has  nothing  to  do  with  the 
question.  If  the  matter  were  for  the  first  time  to  be  decided  at  this 
day,  I  should  have  no  hesitation  in  saying,  that  no  action  could  be 
maintained  for  written  scandal  which  could  not  be  maintained  for 
the  words  if  they  had  been  spoken. 

Judgment  affirmed. 


PEEEY  V.  PORTER. 
Supreme  Court  of  Massachusetts,  April,  1878.    124  Mass.  338. 

The  case  is  stated  in  the  opinion. 

Morton,  J.  The  plaintiff's  declaration  contains  thirteen  counts  for 
slander  and  a  count  for  libel.  Of  the  counts  for  slander  he  has  fur- 
nished us  with  copies  of  the  fifth,  seventh  and  tenth  only,  and  we 
assume  that  he  now  relies  only  upon  these  three  counts. 

At  the  close  of  the  trial,  the  court  ruled  that  there  was  no  evidence 
to  support  the  counts  for  slander.  The  correctness  of  this  ruling 
presents  the  first  question  in  the  case. 

The  fifth  count  alleges  that  the  defendant  accused  the  plaintiff  of 
the  crime  of  larceny  by  words  spoken  of  and  concerning  the  plain- 
tiff, substantially  as  follows:  "  He  (meaning  the  plaintiff)  is  a  rascal, 
a  villain  and  a  thief."  To  sustain  this  count,  the  plaintiff  must  prove 
that  the  defendant  accused  him  of  the  crime  of  larceny  by  words  sub- 
stantially like  those  alleged.  Payson  v.  Macomber,  3  Allen,  69.  There 
was  no  evidence  in  the  case  that  the  defendant  used  the  words  charged, 
or  any  similar  words.  The  words  used  by  the  defendant,  as  testified 
to  by  the  witness,  accuse  the  plaintiff  of  deception  and  fraud  towards 
Mrs.  Atkins,  but  they  do  not  impute,  and  could  not  have  been  under- 
stood as  charging,  the  crime  of  larceny. 

The  seventh  count  alleges  that  the  defendant  accused  the  plaintiff 
of  the  crime  of  larceny,  or  some  other  criminal  offence,  by  words 
spoken  of  and  concerning  the  plaintiff  substantially  as  follows :  "  He 
(meaning  the  plaintiff)  has  done  that  which  was  in  fact  no  better 
than  stealing,"  meaning  thereby  that  the  plaintiff  had  committed  the 
crime  of  larceny  or  some  other  criminal  offence.  "  That  said  false  and 
malicious  accusations  were  made  to  the  trustees  of  Boston  University 
and  members  of  Boston  Wesleyan  Association  (of  each  of  which  cor- 
porations the  plaintiff  was  a  member,  and  secretary  of  said  trustees) 
and  to  others,  and  made  to  said  trustees  for  the  purpose  of  causing 
the  plaintiff's  removal  and  to  prevent  his  reelection  as  secretary  of 
said  trustees."  The  count  then  proceeds  to  allege  as  special  damage 
the  loss  of  the  plaintiff's  reelection  as  secretary  of  the  trustees  of  Bos- 
ton University. 


454  PERRY   V.    PORTER.  [CHAP.    XII. 

The  tenth  count  alleges  that  the  defendant  accused  the  plaintiff  of 
the  crime  of  gross  fraud,  by  saying  of  him,  "  He  has  committed  gross 
fraud,"  and  in  all  other  respects  is  like  the  seventh  count. 

The  allegation  in  these  counts,  tliat  the  said  false  and  malicious 
accusations  were  made  to  the  trustees  of  Boston  University  and  mem- 
bers of  Boston  Wesleyan  Association  and  others,  is  material.  The  fact 
of  the  publication  of  the  slander  must  be  proved  as  alleged.  If  the 
plaintiff  alleges  a  publication  generally,  the  fact  may  be  proved  by  any 
person  who  heard  the  words.  But  if  he  adds  any  allegation  which  nar- 
rows and  limits  that  which  is  essential,  it  becomes  descriptive  and 
must  be  proved  as  laid.  Chapin  v.  White,  102  Mass.  139.  Downs  v. 
Hawley,  112  Mass.  237. 

The  allegation  we  are  considering  limits  and  narrows  the  general 
allegation  of  publication.  It  identifies  the  slander  upon  which  the 
plaintiff  relies,  and  must  be  proved  as  laid.  There  was  no  evidence 
that  the  publication  by  the  defendant  of  the  alleged  slanderous  words 
was  made  to  the  trustees  of  Boston  University  as  a  body,  or  to  any 
of  the  members  or  trustees,  or  to  members  of  the  Boston  Wesleyan 
Association,  or  for  the  purpose  of  preventing  the  plaintiff's  reelection 
as  secretary. 

The  plaintiff  proved  three  publications,  two  by  the  witness  Clark, 
the  other  by  the  witnesses  Sleeper  and  Benyon,  upon  either  of  which 
he  might  elect  to  rely.  But  the  proof  as  to  neither  of  them  corre- 
sponds with  the  allegation  that  it  was  made  to  the  persons  described, 
for  the  purpose  alleged.  The  fact  that  the  person  to  whom  the  accusa- 
tion is  made  happens  to  be  one  of  the  trustees  is  not  sufficient  to 
satisfy  the  allegation  that  it  was  made  to  the  trustees  of  the  Boston 
University. 

We  are  therefore  of  opinion  that  the  court  correctly  ruled  that  the 
counts  for  slander  could  not  be  maintained  upon  the  evidence. 

In  regard  to  the  count  for  libel,  the  vital  question  is  as  to  the  cor- 
rectness of  the  ruling  of  the  court,  that,  if  the  jury  found  the  matter 
contained  in  the  publication  charged  as  libellous  to  be  true,  this  was 
a  complete  defence  to  the  action. 

The  plaintiff  relied  upon  the  Gen.  Sts.  c.  129,  §  77,^  and  contended 
that  the  truth  was  not  a  justification  and  defence,  if  it  was  proved 
that  the  article  was  published  with  express  malice.  But  the  court 
ruled  that  the  exception  in  the  statute  was  not  applicable  to  a  civil 
action,  and  that  proof  of  the  truth  was  of  itself  a  defence. 

At  common  law,  in  private  actions  for  libel  or  slander,  proof  of  the 
truth  is  a  justification.^  But  in  public  prosecutions  the  rule  was 
otherwise,  and  it  was  accordingly  held  in  Commonwoalth  v.  Blanding, 
3  I'ick.  301,  that  on  an  indictment  for  libel  the  truth  of  the  matter 
publi.shed  wiis  not  admis8il)le  in  evidence.     Probably  in  consequence 

1  I!fv.   I.iiwH.  <h.  173,  8  91. 

*  lilKolow   ou  'loilH,  8tli  ed.,   p.   aOO. 


CHAP.    XII.]  SLANDER   AND   LIBEL.  455 

of  this  decision,  the  Legislature  enacted  in  1827  that  in  every  prosecu- 
tion for  a  libel  the  defendant  might  give  in  evidence  in  his  defence  the 
truth  of  the  matter  charged  to  be  libellous,  but  that  such  evidence 
should  not  be  a  justification  unless  it  was  made  to  appear  that  such 
matter  was  published  with  good  motives  and  for  justifiable  ends.  St. 
1826,  c.  107,  §  1.1 

This  was  reenacted  in  the  Eev.  Sts.  c.  133,  §  6,  and  remained  the 
law  until  1855,  when  it  was  provided  that  "  in  every  prosecution,  and 
in  every  civil  action  for  writing  or  for  publishing  a  libel,  the  defendant 
may  give  in  evidence,  in  his  defence  upon  the  trial,  the  truth  of  the 
matter  contained  in  the  publication  charged  as  libellous;  and  such 
evidence  shall  be  deemed  a  sufficient  justification,  unless  malicious 
intention  shall  be  proved."     St.  1885,  c.  396,  §  1. 

This  provision  was  without  change  incorporated  into  the  Gen.  Sts.  c. 
129,  §  77.  It  is  true  that  all  the  prior  legislation  had  been,  not  in  the 
direction  of  limiting  the  effect  of  proof  of  the  truth  in  civil  actions, 
but  in  the  direction  of  enlarging  its  effect  in  favor  of  the  defendant  in 
a  criminal  prosecution.  The  St.  of  1826  for  the  first  time  permitted 
the  truth  to  be  given  in  evidence  as  a  justification  in  criminal  prosecu- 
tions. Under  its  provisions,  the  burden  of  proof  was  upon  the  defend- 
ant to  show  not  only  the  truth  of  the  matter  charged  to  be  libellous, 
but  also  that  it  was  published  with  good  motives  and  for  justifiable 
ends.    Commonwealth  v.  Bonner,  9  Met.  410. 

The  St.  of  1855  goes  further  in  favor  of  defendants  in  criminal 
prosecutions  and  throws  the  burden  on  the  government,  if  the  defend- 
ant establishes  the  truth,  of  proving  that  the  publication  was  made 
with  malicious  intention.  In  this  respect,  it  accords  with  the  general 
tendency  of  modern  legislation  to  make  the  proof  of  the  truth  more 
effective  in  the  defence  of  a  prosecution  for  libel. 

These  considerations,  and  the  further  argument  that,  if  the  Legis- 
lature had  intended  to  make  so  important  a  change  in  the  law  of  libel 
in  civil  suits,  it  would  have  done  so  in  direct  affirmative  language, 
afford  some  ground  for  the  inference  that  it  was  not  intended  that  the 
exception  in  the  concluding  words  of  St.  of  1855  should  apply  to  civil 
actions. 

But,  on  the  other  hand,  we  must  construe  the  words  of  the  statute 
"  according  to  the  common  and  approved  usage  of  the  language  "  un- 
less such  construction  would  be  inconsistent  with  the  manifest  intent 
of  the  Legislature.    Gen.  Sts.  c.  3,  §  7,  cl.  1. 

The  statute  in  its  terms  is  made  applicable  "  in  every  prosecution 
and  in  every  civil  action  for  writing  or  for  publishing  a  libel."  The 
provisions  that  the  truth  may  be  given  in  evidence,  and  if  proved 
shall  be  a  sufficient  justification,  undoubtedly  were  intended  to  apply 
to  civil  and  criminal  proceedings.  According  to  the  common  and  ap- 
proved usage  of  the  language,  the  exception  or  gualification  contained 

1  Rev.  Laws,  ch.  219,  §  8. 


456  BACON    V.    MICH.    CENTRAL   R.    CO.  [CHAP.    XII. 

in  the  words,  "  unless  malicious  intention  shall  be  proved/'  also  ap- 
plies to  civil  actions  as  well  as  to  criminal  prosecutions;  and  we  are 
not  able  to  see  either  in  the  context  or  in  the  history  of  previous  legis- 
lation upon  the  subject,  sufficient  evidence  of  a  manifest  intent  of  the 
Legislature  that  it  should  be  limited  to  criminal  prosecutions. 

We  are  of  opinion,  therefore,  that  the  court  erroneously  ruled  at  the 
trial  that  the  exception  in  the  statute  did  not  apply  to  a  civil  action, 
and  that  the  proof  of  the  truth  was  of  itself  a  defence.  But,  as  this 
error  affected  only  the  count  for  libel,  and  as  the  plaintiff  has  fully 
tried  his  counts  for  slander,  we  are  of  opinion  that  a  new  trial  should 
be  granted  only  upon  the  count  for  libel. 

Exceptions  sustained. 


BACON  V.  MICHIGAN  CENTEAL  EAILEOAD  COMPANY. 

Supreme  Court  of  Michigan,  June,  1887.     66  Mich.   166. 

The  case  is  stated  in  the  opinion. 

Champlin,  J.  The  Michigan  Central  Eailroad  Company  is,  and 
for  a  long  time  has  been,  engaged  in  operating  a  railroad  extending 
from  Detroit  to  Chicago.  It  employs  agents  at  different  points  on  its 
line,  who  have  the  care  of  divisions  of  its  road,  and  who  are  authorized 
to  hire  men  to  work  for  defendant.  It  has  adopted  and  carried  into 
effect  a  plan  by  which  every  employee  who  is  discharged  from  its 
service  is  reported  to  every  agent  authorized  to  employ  men  upon  the 
line  of  its  road  regularly  once  a  month.  A  list  is  made  out  by  the 
assistant  superintendent  in  charge  of  a  division,  in  which  is  entered 
the  names  of  the  persons  discharged  the  previous  month,  their  occu- 
pation and  cause;  and  this  list  is  sent  to  each  of  the  agents  of  the 
company  authorized  to  employ  men,  and  by  them  these  lists  are  kept 
on  file  for  their  future  reference  and  guidance  in  employing  men. 
If  a  person  who  has  been  discharged  from  the  service  of  the  company 
applies  for  employment,  the  agent  examines  the  list;  and,  if  it  tliere 
appears  that  he  was  discharged  for  some  offence, he  refuses  to  employ 
him.  The  railroad  company  claims  that  the  plan  adopted  is  essential 
to  the  efficiency  of  the  force  employed  by  it,  and  to  the  protection  of 
the  company  and  the  public  against  engaging  in  its  service  incom- 
petent or  dishonest  servants. 

The  plaintiff  is  a  carpenter,  and  had  been  employed  by  the  defend- 
ant for  three  or  four  years  in  the  bridge  department.  He  resided  at 
Niles,  a  station  on  the  line  of  defendant's  road.  Ho  had  been  at 
work  at  Mic;higan  City  under  a  foreman  l)y  the  name  of  Palmer,  and 
about  the  fourteenth  of  March,  1882,  and  on  the  evening  of  that  day, 
ho  cnlerod  the  fast  train  of  defendant  to  ride  to  Niles.  He  sat  in 
the  smoking  car,  which  was  poorly  lighted,  and  he  threw  his  over- 


CHAP.    XII.]  SLANDER    AND    LIBEL.  457 

coat  in  a  seat  near  by.  When  he  reached  Niles,  on  leaving  the  train 
in  a  hurry,  by  mistake  lie  picked  up  a  coat  which  was  not  his,  and 
left  his  own,  and  carried  it,  with  his  tools,  to  the  company's  shop,  and 
threw  it  across  a  bench.  The  owner  of  the  coat,  who  was  at  the  time 
in  the  dining  car,  on  returning,  discovered  his  loss,  and  reported  it 
to  the  conductor.  The  coat  which  belonged  to  the  plaintiff  was  found 
where  plaintiff  and  other  employees  had  been  sitting.  It  was  an  old 
coat,  much  worn,  and  had  on  it  a  leather  button,  attached  to  a  string. 
The  conductor  telegraphed  the  cliief  train  dispatcher  at  Jackson 
that  there  had  been  a  coat  taken  on  his  train  at  Niles  by  one  of  Mr. 
Palmer's  men,  and  another  left  in  its  place.  The  matter  was  placed 
in  the  hands  of  a  special  agent,  or  detective  of  the  company,  who  sent 
word  to  Mr.  Humphrey,  another  employee  of  the  company,  at  Niles. 
The  next  morning  after  he  received  word  from  the  special  agent, 
he  went  into  the  yard  where  Mr.  Bacon  was  at  work,  and  asked  him 
if  his  coat  had  a  leather  button  on  it,  and  he  said  it  had.  He  then 
told  him  he  had  such  a  coat  in  the  baggage  room,  and  that  he  (Bacon) 
had  made  a  mistake,  and  got  another  coat.  Bacon  then  went  over  to 
the  bench  where  he  had  left  the  coat  he  had  taken  from  the  car,  and 
handed  it  to  Humphrey,  saying  that  it  was  not  his,  and  advised 
Humphrey  to  send  it  back.  The  coats  were  quite  dissimilar;  the 
plaintiff's  being  a  much  worn  chinchilla,  and  the  other  a  beaver  cloth 
coat,  some  worn,  but  in  good  condition.  The  special  agent  made  his 
report  to  the  assistant  superintendent,  stating  that  the  coat  had  been 
taken  from  the  train,  and  that  there  was  a  big  mistake,  —  after  seeing 
both  coats,  —  so  much  so  that  he  could  not  believe  the  man  honest 
who  had  taken  it,  and  told  him  "  that  we  had  enough  to  do  to  watch 
professional  thieves  without  watching  our  own  men."  He  both  wrote 
and  had  a  personal  interview  with  the  assistant  superintendent.  He 
did  not,  before  he  made  the  report,  go  to  Niles  to  make  examination 
in  reference  to  the  case.  His  report  was  based  upon  the  inspection 
of  the  two  coats,  and  what  he  had  learned  from  Mr.  Humphrey  and 
the  conductor.  He  testified  that  he  believed  what  he  stated  in  his 
report  to  Mr.  Brown,  the  assistant  superintendent.  A  day  or  two 
later,  plaintiff  was  discharged,  for  which  no  cause  was  assigned  at 
the  time.  Mr,  George  DoUivar  was  the  defendant's  agent  at  Niles 
as  division  roadmaster,  and  whose  duty  it  was  to  employ  men.  He 
received  one  of  these  discharged  lists  in  April,  1882,  for  the  month 
of  March.  Plaintiff  came  to  him,  and  requested  to  see  the  list.  He 
showed  it  to  him.     It  contained,  among  other  names,  the  following: 

March  1882. 


Name 
Bacon,  John. 


Occupation 

Carpenter. 


Why  Discharged 

Stealing. 


458  BACON    V.    MICH.    CENTRAL   R.    CO.  [CIIAP.    XII. 

Thereupon  the  plaintiff  brought  this  action  of  libel  against  defend- 
ant. 

The  court  charged  the  jury  that  the  communication  was  privileged, 
and  the  plaintiff  could  not  recover  without  proving  affirmatively  not 
only  the  falsehood  of  its  contents,  but  also  that  it  was  published  with 
express  malice;  and  upon  the  latter  point  he  instructed  the  jury  that 
there  was  no  evidence  to  go  to  them,  and  he  directed  a  verdict  for  the 
defendant.  This  charge  of  the  court  raises  the  only  questions  for 
our  consideration,  which  are,  first,  was  the  communication  privileged ; 
and,  second,  did  the  court  err  in  taking  the  case  from  the  jury  on  the 
ground  of  an  entire  want  of  evidence  of  express  malice. 

It  is  not  claimed  that  the  communication  belongs  to  that  class 
which  are  absolutely  privileged,  but  counsel  for  defendant  contend 
that  it  was  a  publication  which  related  to  a  matter  in  which  the  de- 
fendant M^as  interested,  and  concerning  which  the  corporation  and  its 
officers  to  whom  it  was  sent  must  needs  be  advised  in  order  to  prose- 
cute defendant's  business  successfully,  and  therefore  it  was  prima 
facie  privileged;  and,  to  entitle  plaintiff  to  recover,  he  must  show 
that  the  publication  was  both  false  and  malicious. 

The  great  underlying  principle  upon  which  the  doctrine  of  privi- 
leged communications  stands,  is  public  policy.  This  is  more  espe- 
cially the  case  with  absolute  privilege,  where  the  interests  and  neces- 
sities of  society  require  that  the  time  and  occasion  of  the  publication 
or  utterance,  even  though  it  be  both  false  and  malicious,  shall  protect 
the  defamer  from  all  liability  to  prosecution  for  the  sake  of  the  public 
good.  It  rests  upon  the  same  necessity  that  requires  the  individual 
to  surrender  his  personal  rights  and  to  suffer  loss  for  the  benefit  of 
the  common  welfare.  Happily  for  the  citizen,  this  class  of  privilege 
is  restricted  to  narrow  and  well-defined  limits.  Qualified  privilege 
exists  in  a  much  larger  number  of  cases.  It  extends  to  all  communica- 
tions made  bona  fide  upon  any  subject-matter  in  which  the  party 
communicating  has  an  interest,  or  in  reference  to  which  he  has  a  duty, 
to  a  person  having  a  corresponding  interest  or  duty.  And  the  privi- 
lege embraces  cases  where  the  duty  is  not  a  legal  one,  but  where  it 
is  of  a  moral  or  social  character  of  imperfect  obligation.  Thompson 
V.  Dashwood,  11  Q.  B.  Div.  45;  Davies  v.  Snead,  L.  E.  5  Q.  B.  611; 
Waller  v.  Lock,  45  Law  T.  (N.  S.)  243;  Somerville  v.  Hawkins,  10 
C.  B.  583,  20  Law  J.  C.  P.  131;  Toogood  v.  Spyring,  1  Cromp.,  M. 
&  R.  181 ;  Capital  and  Counties  Bank  v.  Henty,  7  App.  Cas.  741 ; 
Dclaney  v.  Jones,  4  Esp.  193 ;  Laughton  v.  Bishop,  etc.,  L.  R.  4  C.  P. 
4!)5,  504;  Harrison  v.  Bush,  5  El.  &  Bl.  344,  25  Law  J.  Q.  B.  25; 
Wbitelcy  v.  Adams,  15  C.  B.  (N.  S.)  392,  33  Law  J.  C.  P.  89; 
Shipley  v.  Todhunter,  per  Tindal,  C.  J.,  7  Car.  &  P.  680;  Harris 
V.  Thompson,  13  C.  B.  333;  Wilson  v.  Robinson,  7  Q.  B.  68,  14 
Law  J.  Q.  B.  196;  Taylor  v.  Hawkins,  16  Q.  B.  308,  20  Law  J. 
Q.  B.  313;  Manby  v.  Witt,  18  C.  B.  544,  25  Law  J.  C.  P.  294;  Lewis 


CHAP.    XII.]  SLANDER   AND   LIBEL.  459 

V.  Chapman,  16  N.  Y.  372 ;  Henwood  v.  Harrison,  41  Law  J.  C.  P. 
206;  Edwards  v.  Chandler,  14  Mich.  471;  Washburn  v.  Cooke,  3 
Denio,  110;  Knowles  v.  Peck,  42  Conn.  386;  Easley  v.  Moss,  9  Ala. 
266;  Van  Wyck  v.  Aspinwall,  17  N.  Y.  190;  Cockayne  v.  Hodgkis- 
son,  5  Car.  &  P.  543;  M'Dougall  v.  Chridge,  1  Camp.  267; 
Weatherston  v.  Hawkins,  1  Term  R.  110. 

The  communication  in  question  here  is  clearly  within  the  principle 
of  the  cases  above  cited.  It  was  made  by  a  person  interested  in  behalf 
of  defendant  company,  and  having  in  charge  its  affairs  to  a  certain 
extent,  to  another  person  alike  interested  in  behalf  of  the  company 
regarding  matters  pertaining  to  his  duties  as  an  agent  of  the  company 
authorized  to  employ  men.  Care  was  taken  to  restrict  the  communi- 
cation to  the  proper  persons,  and  also  to  prevent  undue  publicity. 
It  is  not  only  proper,  but  it  is  of  the  utmost  importance  to  the  com- 
pany, and  to  the  public  having  business  transactions  with  it,  that  the 
servants  employed  by  it  shall  be  men  of  good  character,  temperate, 
and  efficient.  Corporations  may  be  liable  for  the  negligence  of  their 
employees;  not  only  so,  but  they  may  be  held  responsible  for  not 
engaging  suitable  servants,  as  well  as  for  continuing  in  their  employ- 
ment unsuitable  servants  whereby  third  persons  suffer  loss  or  injury 
through  the  want  of  care,  skill,  temperate  habits,  or  honesty  of  such 
servants.  The  plan  adopted  and  pursued  by  the  defendant  was  in- 
tended to  protect  the  company  against  employment  of  persons  whom 
it  had  found  to  be  unworthy  or  inefficient,  and  is  as  fully  privileged 
as  a  communication  from  one  stockholder  to  another  respecting  the 
employment  of  a  superintendent,  or  from  one  partner  to  another  re- 
specting the  employment  of  a  book-keeper,  or  from  a  person  interested 
in  a  lawsuit  to  another  interested  respecting  the  solicitor  employed. 
But  it  is  said  that  it  was  not  necessary  to  state  the  cause  of  the  dis- 
charge ;  that  the  communication  was  from  a  superior  to  a  subordinate, 
and  would  have  been  sufficient  to  state  the  fact  of  the  discharge,  with- 
out stigmatizing  the  plaintiff  as  a  thief.  This  objection  goes  only  to 
the  character  of  the  language  used,  and  not  to  the  occasion.  The 
occasion  determines  the  question  of  privilege.  The  language  is  only 
proper  to  be  considered  in  connection  with  the  question  of  malice. 
In  the  discharge  list  put  in  evidence  there  appear  the  names  of  30 
persons  who  were  discharged  in  March,  1882.  Of  these  six  were 
discharged  for  drunkenness  and  intemperance,  who  had  been  em- 
ployed as  clerks,  brakemen,  switchmen,  and  laborers;  others  for  in- 
competency and  carelessness.  It  is  in  proof  that  defendant  had  about 
5,000  men  in  its  service,  and  any  one  can  see  that  some  system  is 
necessary  to  prevent  being  imposed  upon  by  persons  unfit  to  be  en- 
gaged in  such  important  business  as  operating  a  railroad,  where  lives 
and  property  depend  upon  the  trustworthiness  of  those  filling  every 
grade  of  employment  down  to  and  including  the  common  laborer. 
The  ruling  of  the  court  as  to  the  privileged  character  of  the  com- 
munication was  correct. 


460  BACON    V.    MICH.    CENTRAL   II.    CO.  [CHAP.    XII. 

The  meaning  in  law  of  a  privileged  communication  is  that  it  is 
made  on  such  an  occasion  as  rebuts  the  prima  facie  inference  of 
malice  arising  from  the  publication  of  matter  prejudicial  to  the  char- 
acter of  the  plaintiff,  and  throws  upon  him  the  onus  of  proving  malice 
in  fact ;  but  not  of  proving  it  by  extrinsic  evidence  only :  he  has  still 
a  right  to  require  that  the  alleged  libel  itself  shall  be  submitted  to 
the  jury,  that  they  may  judge  whether  there  is  any  evidence  of  malice 
on  the  face  of  it.  Wright  v.  Woodgate,  2  Cromp.,  M.  &  K.  573,  1 
Gale,  329.  It  was  held  in  Somerville  v.  Hawkins,  supra,  that,  a  com- 
munication being  shown  to  be  privileged,  it  lies  upon  the  plaintiff  to 
prove  malice  in  fact ;  that,  in  order  to  entitle  him  to  have  the  ques- 
tion of  malice  left  to  the  jury,  he  need  not  show  circumstances  neces- 
sarily leading  to  the  conclusion  that  malice  existed,  or  such  as  are 
inconsistent  with  its  non-existence,  but  they  must  be  such  as  raise 
a  probability  of  malice,  and  be  more  consistent  wdth  its  existence  than 
its  non-existence;  and  in  Cooke  v.  Wildes,  5  El.  &  Bl.  329,  it  was 
held  that  if  the  occasion  creates  such  privilege,  but  there  is  evidence 
of  express  malice,  either  from  extrinsic  circumstances  or  from  the 
language  of  the  libel  itself,  the  question  of  express  malice  should  be 
left  to  the  jury.  In  actions  for  defamation,  malice  is  an  essential  ele- 
ment in  the  plaintiff's  case.  But  in  these  cases  the  word  "  malice  " 
is  understood  as  having  two  significations ;  one,  its  ordinary  meaning 
of  ill  will  against  a  person,  and  the  other  its  legal  signification,  which 
is  a  wrongful  act  done  intentionally,  without  just  cause  or  excuse. 
These  distinctions  have  been  denominated  malice  in  fact  and  malice 
in  law.  The  first  implies  a  desire  and  an  intention  to  injure;  the 
latter  is  not  necessarily  inconsistent  with  an  honest  purpose,  but,  if 
false  and  defamatory  statements  are  made  concerning  another  with- 
out sufficient  cause  or  excuse,  they  are  legally  malicious,  and  in  all 
ordinary  cases  malice  is  implied  from  the  defamatory  nature  of  the 
statements  and  their  falsity.  The  effect,  therefore,  of  showing  that 
the  communication  was  made  upon  privileged  occasion  is  prima  facie 
to  rebut  the  quality  or  element  of  malice,  and  casts  upon  the  plaintiff 
the  necessity  of  showing  malice  in  fact,  —  that  is,  that  the  defendant 
was  actuated  by  ill  will  in  what  he  did  and  said,  with  a  design  to 
causelessly  or  wantonly  injure  the  plaintiff,  —  and  this  malice  in 
fact,  resting  as  it  must,  upon  the  libellous  matter  itself  and  the  sur- 
rounding circumstances  tending  to  prove  fact  and  motive,  is  a  ques- 
tion to  be  determined  by  the  jury.  The  question  whether  the  occasion 
is  such  as  to  rebut  the  inference  of  malice  if  the  communication  be 
bona  fide  is  one  of  law  for  the  court;  but  whether  bona  fides  exists  is 
one  of  fact  for  the  jury.  1  Amer.  Lead.  Cas.  (5th  cd.),  193;  Smith 
V.  Youmans,  3  Hill  (S.  C),  85;  Hart  v.  Eeed,  1  B.  Mon.  IGG,  169; 
Gray  v.  Pentland,  4  Serg.  &  E.  420,  423 ;  Flitcraft  v.  Jenks,  3  Whart. 
158.  The  jury  may  find  the  existence  of  actual  malice  from  the  lan- 
guage of  tlie  communication  itself,  as  well  as  from  extrinsic  evidence. 


CHAP.    XII.]  SLANDER   AND   LIBEL.  461 

Hastings  v.  Lusk,  22  Wend.  410,  421;  ^  Coward  v.  Wellington,  7  Car. 
&  P.  531,  53G ;  Wright  v.  Woodgate,  per  Parke,  B.,  2  Cromp.,  M.  & 
E.  573,  578;  Jackson  v.  Ilopperton,  IG  C.  B.  (X.  S.),  HI  E.  C.  L. 
829. 

I  agree  with  Erie,  C.  J.,  in  the  case  last  cited,  that  — 
"  A  plaintiff  does  not  sustain  the  burden  of  proof  which  is  cast 
upon  him  by  merely  giving  evidence  which  is  equally  consistent  with 
either  view  of  the  matter  in  issue.  When  the  presumption  of  malice 
is  neutralized  by  the  circumstances  attending  tlie  utterance  of  the 
slander  or  the  publication  of  the  libel,  the  plaintiff  must  give  further 
evidence  of  actual  or  express  malice  in  order  to  maintain  his  action.'' 
Was  there  evidence  here  wliich  would  warrant  the  jury  in  inferring 
that  defendant  acted  from  malicious  motives  when  charging  that 
plaintiff  was  discharged  from  its  employment  for  "  stealing  ?  "  The 
case  is  obscured  somewhat  from  the  fact  that  the  defendant  is  a  cor- 
poration, and  its  motives  must  be  sought  for  in  the  acts  and  utter- 
ances of  its  agents,  authorized  or  ratified  by  the  corporation.  The 
communication  itself  charges  a  crime.  If  made  wantonly;  if  made 
without  any  reasonable  evidence  of  its  truth,  or  such  evidence  or 
circumstances  as  would  lead  an  ordinarily  prudent  person  to  believe 
its  truth;  if  the  means  of  investigation  were  at  hand,  and  none  were 
made;  or,  if  investigation  was  made,  the  extent  of  the  investigation, 
and  what  transpired,  —  in  short,  all  the  facts  and  circumstances 
which  preceded  and  led  up  to  the  charge  of  stealing,  —  were  proper, 
together  with  the  charge  itself,  to  be  submitted  to  the  jury ;  and  from 
the  whole  evidence  it  was  their  province  to  determine  wdiether  the 
charge  was  made  through  personal  ill  will  or  a  wanton  disregard  of 
the  character  and  rights  of  plaintiff.  To  my  mind,  there  was  evidence, 
intrinsic  and  extrinsic,  from  which  the  jury  would  have  been  justified 
in  finding  that  the  defendant  was  actuated  by  malice  in  fact,  or  ex- 
press malice.  The  intrinsic  evidence  is  found  in  the  charge  itself, 
taking  for  granted  what  was  proved,  that  the  exchange  of  coats  was 
a  mistake,  caused  by  carelessness  or  negligence,  without  any  criminal 
intent.  It  was  for  the  jury  to  say  that  the  circumstances  were  such 
under  which  the  coat  was  taken,  the  information  received  by  the  spe- 
cial agent,  the  report  made  to  the  assistant  superintendent,  as  to  repel 
and  rebut  the  bona  fides  of  the  defendant's  agents  in  stating  that 
plaintiff  was  discharged  for  stealing.  And,  while  I  think  there  was 
evidence  tending  to  sliow  that  the  agents  of  the  defendant  were  acting 
through  spite  or  resentment  towards  the  plaintiff  because  he  had  not 
exercised  greater  care  when  taking  the  wrong  coat  when  leaving  the 
car,  yet  I  fully  agree  in  the  remarks  of  Baron  Parke  in  Toogood  v. 
Spyring,  1  Cromp.,  M.  &  E.  193,  that  if  such  communications  are 
fairhj  warranted  by  any  reasonable  occasion  or  exigency,  and  honestly 
made,  such  communications  are  protected  for  the  common  convenience 

'  Post,  p.  464. 


462  SHECKELL   V.    JACKSON,  [CHAP.    XII. 

and  welfare  of  society,  and  the  law  has  not  restricted  the  right  to 
make  them  within  any  narrow  limits.  If  the  agents  of  the  defendant 
honestly  believed  that  the  plaintiff  took  the  coat  in  question  under 
the  circumstances  detailed  to  them,  with  the  intention  of  appropria- 
ting it  to  his  own  use,  the  defendant  is  protected  in  having  listed 
plaintiff  as  having  been  discharged  for  stealing.  I  think  the  evidence 
in  the  case  should  have  been  submitted  to  the  jury  to  determine 
whether  defendant,  through  its  agents,  acted  in  good  faitli,  under  all 
the  circumstances  of  the  case.  Klinck  v.  Colby,  46  N".  Y.  437 ;  Brow 
V.  Hathaway,  13  Allen,  239;  Gassett  v.  Gilbert,  G  Gray,  94;  Fowles 
V.  Bowen,  30  N.  Y.  25;  Kelly  v.  Partington,  4  Barn.  &  Adol.  700, 
24  E.  C.  L.  307. 

Sherwood,  J.,  concurred  with  Champlin,  J. 

Campbell,  C.  J.     I  am  not  satisfied  the  libel  was  privileged,  and 
therefore  concur  in  reversal. 

MoESE,  J.    I  concur  in  the  reversal. 

The  judgment  must  he  reversed,  and  a  new  trial  granted. 


SHECKELL   v.    JACKSON. 

Supreme  Court  of  Massachusetts,  September,  1852.     10  Cush.  25. 

The  case  is  stated  in  the  opinion  of  the  court. 

Shaw,  C.  J.  This  is  an  action  on  the  case  for  a  libel  published  of 
the  plaintiff,  an  inhabitant  of  the  District  of  Columbia,  charging  him 
with  treachery  and  bad  faith,  in  regard  to  money  received  by  the  plain- 
tiff, to  obtain  the  manumission  of  a  fugitive  slave,  and  then  inviting 
the  slave  to  go  into  a  slave  district,  for  the  purpose  of  again  placing 
him  in  a  state  of  slavery.  The  case  was  original  in  this  court;  was 
tried  before  Mr.  Justice  Fletcher,  and  the  only  question  before  us 
arises  on  his  report. 

A  witness,  described  as  a  news-collector,  having  testified  that  he 
MTote  a  part  of  the  article  complained  of,  and  the  part  tending  per- 
haps most  to  slander  the  plaintiff,  it  was  on  the  part  of  the  defendants 
proposed  to  ask  him  "  what  inquiries  and  examinations  he  made,  and 
what  sources  of  information  he  applied  to,  before  making  the  com- 
munications "  tending  to  charge  the  plaintiff  with  dishonesty  and  bad 
faitb.  This  was  objected  to  and  rejected.  This  we  think  was  correct. 
The  answers  could  have  no  tendency  to  prove  the  truth  of  the  facts 
charged;  and  for  the  purpose  of  proving  reports  and  rumors,  from 
whatever  source  derived,  we  think  they  were  immaterial  and  inad- 
miHsi})lo. 

The  same  olijoction  we  think  lies,  with  increased  strength  against 
the  offer  by  the  defendants  to  prove  that  there  was  a  general  anxiety 


CHAP.    XII.]  SLANDER    AND   LIBEL.  463 

ill  the  community  lest  Einpgold,  the  colored  man  in  question,  had 
been  deceived  in  the  transactions  with  the  plaintiff  referred  to,  and 
thus  reduced  to  slavery.  Without  any  attempt  or  offer  to  prove  tlie 
fact  that  the  plaintiff'  had  been  guilty  of  the  deception  imputed  to 
him,  the  general  anxiety,  if  it  existed,  afforded  no  justiffcation  or 
excuse  for  charging  such  misconduct  upon  the  plaintiff,  in  a  news- 
paper intended  for  general  circulation  in  the  community. 

The  other  exception  related  to  the  directions  given  by  the  judge 
to  the  jury  in  matter  of  law,  which  were  as  follows: 

''  On  the  part  of  the  defendants,  it  is  maintained,  that  when  a  party 
has  a  duty  to  perform,  and  in  the  performance  of  that  duty  states 
honestly  what  he  believes  to  be  true,  the  occasion  furnishes  a  justifi- 
cation for  the  statement,  tliough  he  may  be  mistaken;  and  that  the 
case  of  the  defendants  comes  within  the  principle.  It  is  true  there 
is  such  a  class  of  cases.  When  a  party  has  a  duty  to  perform,  and 
states  honestly  what  he  believes  to  be  true,  though  mistaken,  th3 
occasion  furnishes  a  justification,  unless  the  plaintiff  can  show  ex- 
press malice.  The  occasion  in  such  a  case  prevents  the  implication 
of  malice.  This  principle  is  stated  in  the  case  of  Bradley  v.  Heath, 
12  Pick.  163." 

"  So  in  this  case,  if  the  occasion  were  such  an  one  as  comes  within 
this  principle,  then  it  would  prevent  the  implication  of  malice,  for 
publishing  what  was  not  true,  and  the  plaintiff  would  not  recover 
without  showing  express  malice." 

"  But  in  point  of  law,  the  occasion  of  this  publication  was  not  such 
an  one  as  affords  a  justification  to  the  defendants  for  publishing  what 
was  not  true.  The  defendants'  case  does  not  come  within  the  privi- 
leged or  excepted  cases  from  the  general  rule.  But  if  the  publication 
is  libellous  upon  the  plaintiff,  upon  the  definition  of  libel  as  before 
given  to  you,  then  the  defendants  are  by  law  responsible  to  the  plain- 
tiff in  damages  for  the  injury  they  have  done  him." 

"  Then  it  has  been  urged  upon  you  that  conductors  of  the  public 
press  are  entitled  to  peculiar  indulgence,  and  have  especial  rights 
and  privileges.  The  law  recognizes  no  such  peculiar  rights,  privileges, 
or  claims  to  indulgence.  They  have  no  rights  but  such  as  are  common 
to  all.  They  have  just  the  same  rights  that  the  rest  of  the  community 
have,  and  no  more.  They  have  the  right  to  publish  the  truth,  but 
no  right  to  publish  falsehoods  to  the  injury  of  others  with  impunity." 

These  instructions,  in  the  opinion  of  the  court,  are  correct  in  point 
of  law,  carefully  illustrated  and  qualified,  and  were  well  adapted  and 
applied  to  the  circumstances  of  the  case. 

Judgment  on  the  verdict  for  the  plaintiff. 


464  HASTINGS    V.    LUSK.  [CHAP.    XII. 

HASTINGS    V.    LUSK. 

Court  of  Errors  of  New  York,  December,  1839.     22  Wend.  410. 

Action  for  slander,  charging  the  plaintiff  Lusk  with  perjury  in  an 
examination  before  a  magistrate,  where  the  defendant  Hastings  had 
been  charged  with  threatening  to  shoot  Lusk.  Plea  of  the  general 
issue.  The  defence,  inter  alia,  was  that  the  words  were  spoken  by  the 
defendant  while  conducting  his  own  defence  in  said  case,  and  that 
they  were  relevant  and  pertinent  to  the  examination.  There  was  also 
a  plea  of  no  malice.  Replication  traversing  the  pleas ;  issues  thereon ; 
and  verdict  for  the  plaintiff,  with  nominal  damages.  The  jury  found 
specially  that  the  words  were  spoken  falsely  and  maliciously,  and  that 
they  were  not  relevant,  and  were  not  uttered  in  the  course  of  his  de- 
fence before  the  magistrate,  but  elsewhere. 

Motion  in  arrest  of  judgment  overruled;  whereupon  defendant 
sued  out  a  writ  of  error. 

The  Chancellor.  The  principle  involved  in  this  case  is  of  great 
importance  to  the  community,  inasmuch  as  it  involves  the  rights  and 
privileges  of  counsel  and  of  parties  in  the  investigation  of  suits  and 
other  proceedings  before  our  judicial  tribunals;  and  as  I  believe  it  is 
the  first  cause  of  the  kind  which  has  been  brought  before  this  court 
of  dernier  ressort,  and  has  been  very  fully  and  most  ably  argued  here 
by  the  counsel  upon  both  sides,  I  have  considered  it  my  duty  to  ex- 
amine the  law  on  the  subject  more  fully  than  would  be  necessary  or 
proper  in  an  ordinary  case  of  mere  verbal  slander;  for  it  is  not  only 
right  and  proper  that  parties  and  their  counsel  should  know  what 
their  privileges  are,  but  also  that  the  law  should  be  deliberately  and 
correctly  settled.  In  applying  the  principles  of  law  to  the  case  under 
consideration,  we  must,  therefore,  be  careful  on  the  one  hand  that 
we  do  not  restrict  counsel  within  such  narrow  limits  that  they  will 
not  dare  to  openly  and  fearlessly  discharge  their  whole  duty  to  their 
clients,  or  to  themselves  when  they  manage  their  own  cases;  and,  on 
the  other  hand,  we  must  not  furnish  them  with  the  shield  of  Zeus, 
and  thereby  enable  them  with  impunity  to  destroy  the  characters  of 
whomsoever  they  please. 

There  are  two  classes  of  privileged  communications  recognized  in 
the  law  in  reference  to  actions  of  slander,  and  the  privileges  of  coun- 
sel may  sometimes  fall  within  the  one  class  and  sometimes  within 
the  other.  In  one  class  of  cases  the  law  protects  the  defendant  so  far 
as  not  to  impute  malice  to  him  from  the  mere  fact  of  his  having 
spoken  words  of  the  plaintiff  which  arc  in  themselves  actionable, 
though  he  may  not  be  able  to  prove  the  truth  of  his  allegations. 
But  the  plaintiff  will  1)0  able  to  sustain  his  action  for  slander,  if  he 
can  satisfy  the  jury,  by  other  proof,  that  there  was  actual  malice  on 


OIIAP.    XII.]  SLANDER   AND   LIBEL.  465 

the  part  of  the  defendant,  and  that  he  uttered  the  words  for  the 
mere  purpose  of  defaming  the  plaintiff.  In  the  other  class  of  eases 
the  privilege  is  an  effectual  shield  to  the  defendant;  so  that  no  action 
of  slander  can  be  sustained  against  him,  whatever  his  motive  may  have 
been  in  using  slanderous  words. 

One  of  the  earliest  cases  of  the  first  class  is  Parson  Prit's  Case, 
reported  by  EoUe.  1  Eoll.  Abr.  87,  pi.  5.  Although  the  report  of 
this  case  is  very  short,  it  will  be  perfectly  understood  by  a  reference 
to  Fox's  "  Martyrology,"  where  the  author,  in  giving  an  account  of  the 
severe  punishments  inflicted  by  the  vengeance  of  Heaven  upon  some 
of  the  persecutors  of  the  Protestants  during  the  reign  of  the  Bloody 
Mary,  states  that  Grimwood  or  Greenwood,  as  he  is  called  by  Rolle, 
one  of  the  perjured  witnesses  who  was  hired  to  swear  away  the  life  of 
John  Cooper,  an  innocent  person,  who  was  convicted  and  hanged, 
was  soon  after  destroyed  by  the  terrible  judgment  of  God,  being  sud- 
denly seized  while  in  perfect  health,  so  violently  that  his  bowel  gushed 
out.  From  the  report  it  appears  that  the  defendant,  Parson  Prit, 
having  been  recently  settled  in  the  parish,  and  not  knowing  all  his 
parishioners,  in  preaching  against  the  heinous  sin  of  perjury  cited 
this  case  from  the  "  Book  of  Martyrs ; "  and  no  doulit  commented 
severely  upon  Greenwood,  and  upon  White,  his  forsworn  companion, 
who  by  their  perjury  had  caused  an  innocent  man  to  be  drawn  in 
quarters  and  his  wife  and  children  to  be  kft  desolate.  It  turned  out, 
however,  that  Greenwood  was  not  dead,  and  that,  being  a  resident  of 
that  parish,  he  was  present  in  the  church  and  heard  the  sermon,  and 
afterwards  brought  a  suit  against  the  parson  for  charging  him  with 
perjury.  But  the  court  held  that  it  was  a  privileged  communication, 
and  the  circumstances  under  which  the  words  were  spoken  showed 
there  was  no  actual  malice  towards  the  plaintiff.  See  also  Cro.  Jac. 
91.  This  case  has  been  followed  by  a  numerous  class  depending 
upon  the  same  principle,  in  which  the  speaking  of  the  words  is  held 
to  be  a  privileged  communication,  the  occasion  of  the  speaking  being 
such,  that  prima  facie  there  could  have  been  no  malicious  intent  to 
defame  the  person  of  whom  they  were  spoken,  and  the  interests  of 
society  requiring  that  the  defendant  should  be  permitted  to  speak 
freely  in  the  situation  in  which  he  is  placed,  provided  he  confine 
himself  within  the  bounds  of  what  he  believes  to  be  the  truth.  .  .  . 
[A  question  of  pleading  discussed."]  The  presumption  in  these 
cases,  that  there  was  no  malice,  is  not  rebutted  by  the  plaintiff's 
merely  showing  that  the  charge  afrainst  him  was  untrue  in  point  of 
fact;  it  must  be  further  shown  that  the  defendant  either  knew  or 
had  reason  to  believe  it  was  untrue  at  the  time  of  the  speaking  of  the 
words  complained  of.  I\ine  v.  Sewell,  1  Horn  &  Hurl.  83 ;  3  Mees. 
&  Wels.  2fl7,  s.  C.  Proving  that  the  defendant  knew  the  charge  to  be 
fa1«e  would  un question ablv  be  evidence  of  express  malice,  and  would 
destroy  the  defence  in  this  class  of  cases. 


466  HASTINGS    V.    LUSK.  [CHAP.    XII. 

As  the  plaintiff  has  a  right  to  prove  express  malice  in  such  cases, 
to  sustain  his  action,  notwithstanding  the  privilege,  it  follows,  of 
course,  that  if  the  defendant  attempt  to  set  up  his  privilege  as  a 
defence  by  a  special  plea,  he  must  not  only  plead  the  fact  which  ren- 
dered it  a  privileged  communication,  but  he  must  deny  the  allega- 
tion in  the  declaration,  that  the  words  were  maliciously  spoken,  to 
enable  the  plaintiff  to  go  to  the  jury  upon  the  question  of  actual 
malice,  if  he  thinks  proper  to  do  so.  .  .  . 

The  second  class  of  privileges  embraces  words  spoken  by  members 
of  Parliament,  or  of  Congress,  or  of  the  State  legislature,  in  the  dis- 
charge of  their  official  duties  in  the  House,  for  which  no  action  of 
slander  will  lie,  however  false  and  malicious  may  be  the  charge  against 
the  private  reputation  of  an  individual.  To  this  class,  also,  belong 
complaints  made  to  grand  juries  and  magistrates,  charging  persons 
with  crimes,  for  which  no  action  of  slander  will  lie,  although  express 
malice  as  well  as  the  absolute  falsity  of  the  charge  can  be  established 
by  proof.  But  the  law  has  provided  a  different  remedy  in  cases  of  that 
kind,  where,  in  addition  to  what  has  before  been  stated,  it  can  be 
proved  that  the  party  who  made  the  complaint  had  no  probable  cause 
for  believing  that  the  charge  was  true.  Upon  a  full  consideration 
of  all  the  authorities  on  the  subject,  I  think  that  the  privilege  of 
counsel  in  advocating  the  causes  of  their  clients,  and  of  parties  who 
are  conducting  their  own  causes,  belongs  to  the  same  class  where  they 
have  confined  themselves  to  what  was  relevant  and  pertinent  to  the 
question  before  the  court,  and  that  the  motives  with  which  they  have 
spoken  what  was  relevant  and  pertinent  to  the  cause  they  were  advo- 
cating cannot  be  questioned  in  an  action  of  slander.  Thus  far  it 
appears  to  be  necessary  to  extend  the  privilege  for  the  protection  of 
the  rights  of  the  parties;  as  those  rights  might  sometimes  be 
jeoparded  if  counsel  were  restrained  from  commenting  freely  upon 
the  characters  of  witnesses,  and  the  conduct  of  parties,  when  such 
comments  were  relevant,  for  fear  of  being  harassed  with  slander 
suits,  and  attempts  to  prove  they  were  actuated  by  malicious  motives 
in  the  discharge  of  their  duty.  Such  T  understand  also  to  be  the  con- 
clusion at  which  the  Court  of  King's  Bench  arrived  in  the  case  of 
the  present  Lord  Chief  Baron  of  the  Court  of  Exchequer.  Hodgson 
V.  Scarlett,  1  Barn.  &  Aid.  232;  Holt's  N.  P.  621.  Although  Mr. 
Holt  has  attempted  to  give  a  statement  of  what  occurred  in  banc, 
as  well  as  a  report  of  the  case  at  nisi  prius,  to  understand  the  decision 
correctly  it  is  necessary  to  examine  the  case  in  Barnewall  &  Alderson, 
not  only  as  to  the  final  opinion  of  the  judges,  but  also  as  to  what 
occurred  in  the  course  of  the  argument.  There  was  no  question  as 
to  the  fact  that  the  plaintiff  was  nonsuited  upon  the  opening,  by 
Baron  Wood,  who  held  the  assizes,  without  permitting  him  to  go  to 
the  jury.  He,  therefore,  had  no  opportunity  to  prove  express  malice, 
or  to  have  it  inferred  from  the  manner  in  which  the  charge  was  made. 


CHAP.    XII.]  SLANDER   AND   LIBEL.  467 

His  counsel  upon  the  argument  insisted  that  the  learned  judge  had 
stopped  the  cause  too  soon,  without  hearing  the  evidence.  To  this  it 
was  answered,  that  Baron  Wood  liad  reported  that  tlie  counsel  at  the 
assizes  admitted  that  the  alleged  slanderous  words  were  used  by  the 
defendant  as  observations  in  a  cause,  and  were  pertinent  to  the  matter 
in  issue.  But  as  there  appeared  to  have  been  a  misapprehension  on 
this  point,  the  court  heard  a  statement  of  the  proceedings  in  the 
original  suit  from  the  notes  of  Mr.  Justice  Bailey,  who  tried  the 
cause.  The  plaintiff's  counsel  still  contended  there  was  a  question 
which  ought  to  have  been  left  to  the  jury,  as  they  were  to  say  whether 
there  was  not  malice  to  be  inferred  from  the  facts.  Upon  which  Lord 
Ellenborough  immediately  inquired  if  the  words  were  relevant, 
whether  they  were  not  within  the  protection  of  law?  And  it  was  in 
answer  to  this  part  of  the  argument  that,  in  delivering  his  final  deci- 
sion in  the  cause,  he  said,  although  he  admitted  it  might  have  been 
too  much  for  the  counsel  to  say  that  the  attorney  was  wicked  and 
fraudulent,  "  It  appears  to  me  that  the  words  spoken  were  uttered 
in  the  original  cause,  and  were  relevant  and  pertinent  to  it,  and  con- 
sequently that  this  action  is  not  maintainable." 

I  do  not  understand  from  this,  however,  that  everything  that  in 
any  state  of  facts  would  be  relevant  and  pertinent  to  the  matter  in 
question  before  the  court,  comes  within  this  rule  of  protection,  where 
those  facts  which  would  have  rendered  it  relevant  and  pertinent  do 
not  exist.  Thus,  if  counsel,  in  the  argument  of  his  client's  cause, 
should  avail  himself  of  that  opportunity  to  say  of  a  party,  or  of  a 
witness,  against  whom  there  was  nothing  in  the  evidence  to  justify 
a  suspicion  of  the  kind,  that  he  was  a  thief  or  a  murderer,  it  might  be 
a  proper  case  for  a  jury  to  say  whether  the  counsel  was  not  actuated 
by  malice,  and  improperly  availed  himself  of  his  situation  as  counsel 
to  defame  the  party  or  witness.  Such  appears  to  have  been  the 
opinion  of  the  judges  in  the  case  of  Hodgson  v.  Scarlett,  and  such 
also  must  have  been  the  opinion  of  the  Supreme  Court  of  this  State 
in  the  case  of  Eing  v.  Wheeler,  7  Cowen,  725;  for  the  language  of 
the  defendant  as  stated  in  any  of  the  seven  first  counts  of  the  declara- 
tion in  that  case  might  have  been  relevant  and  pertinent,  and  the 
words  charged  in  the  fourth  and  sixth  counts  probably  were  relevant 
to  the  matter  before  the  arbitrators,  if  the  counsel  was  opening  his 
defence,  and  merely  stating  what  he  expected  to  prove,  according  to 
the  case  of  Moulton  or  Boulton  v.  Clapham,  1  Rolle's  Abr.  87,  which 
was  so  much  relied  upon  by  the  counsel  for  the  plaintiffs  in  error 
upon  the  argument  of  this  cause.  Upon  the  authority  of  that  case, 
perhaps,  they  should  have  been  considered  as  relevant  and  pertinent, 
even  after  verdict. 

I  do  not,  however,  consider  the  case  of  Moulton  v.  Clapham  as  an 
authority  for  holding  that  everything  which  may  be  said  to  the  court 
or  jury,  by  a  party  or  his  counsel,  in  the  progress  of  a  cause,  as  abso- 


468  HASTINGS    V.    LUSK.  [CHAP,    XII. 

lately  protected,  although  it  was  not  relevant  or  pertinent  to  the 
matter  in  question,  so  as  to  preclude  the  party  injured  thereby  from 
showing  to  a  jury  that  the  language  was  used  maliciously,  and  for  the 
mere  purpose  of  defaming  him.  Many  of  these  old  cases  are  very 
imperfectly  reported,  and  are  therefore  apt  to  mislead  us,  unless  they 
are  examined  with  care.  This  case,  although  it  is  to  be  found  in 
D'Anvers,  Sir  William  Jones,  March,  and  in  Rolle's  Abridgment,  is 
not  stated  by  either  two  of  them  in  precisely  the  same  way.  As 
reported  by  Sir  William  Jones,  it  would  lead  us  to  the  conclusion 
that  the  court  meant  to  decide  that  anything  said  in  court  by  a 
party  in  disaffirmance  of  what  was  sworn  against  him  was  abso- 
lutely protected,  although  found  by  the  jury  to  have  been  said 
maliciously;  but  by  referring  to  Eolle,  it  will  be  seen  that  the 
language  used  by  the  defendant  was  addressed  to  the  court,  and 
was  a  mere  statement  that  the  affidavit  was  untrue,  and  that  he 
would  prove  to  them  by  forty  Avitnesses  that  it  was  so;  and  therefore 
it  was  holden  that  the  action  was  not  maintainable,  as  it  appeared 
from  the  plaintiif's  declaration  that  the  answer  as  made  by  the  de- 
fendant to  the  affidavit  was  spoken  merely  in  defence  of  himself,  and 
in  a  legal  and  judicial  way,  "  inasmuch  as  he  said  he  would  prove 
it  by  forty  witnesses."  Neither  is  the  dictum  of  Cromw^ell's  Chief 
Justice  of  the  Upper  Bench  (Style's  E.  462)  to  be  taken  as  broadly 
as  stated  by  the  reporter,  without  knowing  the  state  of  facts  in  refer- 
ence to  which  the  dictum  was  applied.  I  presume  he  must  have  used 
this  language  in  reference  to  words  spoken  by  counsel  in  opening  the 
defence  of  his  client's  cause  to  the  jury,  stating  what  he  should  prove. 
For  he  immediately  adds,  "  It  is  his  duty  to  speak  for  his  client, 
and  it  shall  be  intended  to  be  spoken  according  to  his  client's  in- 
structions." But  surely  no  one  can  for  a  moment  suppose  the  learned 
Chief  Justice  intended  to  say  that  it  was  the  duty  of  counsel  to  say 
anything  that  was  not  relevant  to  the  matter  in  question;  or  to  go 
])eyond  the  case  for  the  purpose  of  maligning  a  witness  or  the  adverse 
party,  altliough  he  might  have  been  instructed  to  do  so  by  his  client. 
As  I  understand  the  case  of  Brook  v.  Montague,  Cro.  Jac.  90,  the  plea 
must  have  alleged  that  the  words  were  spoken  by  the  counsel  in  rela- 
tion to  the  evidence  which  was  to  he  given  in  favor  of  the  jury  against 
Brook,  who  had  attainted  them.  He  probably  was  instructed  by  his 
client  that  Brook  had  been  convicted  of  felony;  and  if  so,  he  was 
])robab]y  incapable  of  proceeding  in  the  attaint  against  the  jury,  as 
the  law  then  stood.  Coke  Litt.  130  a;  Sleght  v.  Kane,  2  Johns.  Cas. 
23G.  The  language  of  the  reporter  is,  that  the  counsel  spoke  the 
words  in  evidence.  This  certainly  could  not  be  so,  as  there  was  no 
protenco  tliat  the  counsel  was  a  witness  on  the  trial.  I  liave  no  doubt, 
therefore,  that  the  language  of  the  plea  was  that  the  counsel,  in  refer- 
ence to  the  mafters  to  he  given  in  evidence,  spoke  the  words  mentioned 
in  the  plaintiff's  declaration,  &c.,  and  that  by  a  slip  of  the  reporter's 


CHAP.    XII.]  SLANDER   AND    LIBEL.  469 

pen,  or  otherwise,  a  part  of  the  sentence  is  left  out  in  the  printed 
report.  The  case  of  Badgley  v.  Hedges,  1  Penning.  R.  333,  is  like 
that  of  Moulton  v.  Clapham ;  for  it  is  evident  the  defendant  spoke  in 
reference  to  the  contradictory  evidence  which  he  intended  to  give  in 
the  cause,  or  which  he  had  already  given.  If  so,  what  he  said  was 
relevant,  although  perhaps  not  said  at  the  right  time.  I  am  satisfied, 
therefore,  that  there  is  no  law,  either  ancient  or  modern,  which  affords 
complete  protection  to  parties  or  counsel,  so  as  to  bring  tlie  language 
used  by  them  in  the  course  of  judicial  proceedings  within  the  second 
class  of  privileged  communications  which  I  have  stated,  except  where 
the  words  complained  of  as  slanderous  were  relevant  or  pertinent  to 
the  question  to  be  determined  by  the  court  or  jury. 

There  may  be  cases  which  properly  belong  to  the  first  class  of  priv- 
ileged communications,  arising  in  the  course  of  judicial  proceedings. 
Parties,  and  even  counsel  sometimes,  misjudge  as  to  what  is  relevant 
and  pertinent  to  the  question  before  the  court,  and  especially  parties 
who  are  not  much  acquainted  with  judicial  proceedings;  and  it  may 
be  very  proper  in  such  cases  to  leave  it  as  a  matter  of  fact  for  the 
jury  to  determine,  whether  the  words  were  spoken  in  good  faith, 
under  a  belief  that  they  were  relevant  or  proper,  or  whether  the  party 
using  them  was  actuated  by  malice  and  intended  to  slander  the  plain- 
tiff. The  case  of  Allen  v.  Crofoot,  8  Wendell,  516,  appears  to  be  a 
case  of  this  kind,  for  it  is  evident  that  words  spoken  were  not  relevant 
in  the  judicial  proceeding,  or  pertinent  to  any  question  then  before 
the  court.  But  as  circumstances  showed  that  the  defendant  either 
supposed  he  was  bound  to  answer  the  question,  or  that  it  was  relevant 
and  pertinent  to  the  proceedings,  I  think  the  court  very  properly 
decided  that  it  should  have  been  left  to  the  jury  to  determine  whether 
the  defendant  acted  in  good  faith,  supposing  it  was  relevant  and 
proper  to  answer  the  question  put  to  him  by  the  plaintiff,  although 
"he  had  not  yet  been  sworn  as  a  witness  on  the  examination  of  the 
complaint  which  he  had  previously  made  on  oath,  or  whether  he  was 
actuated  by  malice.  In  cases  belonging  to  that  class  of  privileged 
communications,  malice  in  fact  may  be  inferred  from  the  language  of 
the  communication  itself,  as  well  as  from  extrinsic  evidence.  Wright 
V.  Woodgate,  1  Gale's  R.  329. 

But  though  the  slanderous  words  were  spoken  in  the  course  of  a 
judicial  proceeding,  and  were  relevant  and  pertinent  to  the  matter  in 
question,  or  the  defendant  may  have  used  them  in  good  faith  sup- 
posing them  to  be  pertinent,  without  actual  malice  or  any  intention  of 
slandering  the  plaintiff,  yet  if  the  facts  do  not  appear  from  the  plead- 
ings or  the  finding  of  the  jury,  it  will  not  aid  the  defendant  upon  a 
motion  in  arrest  of  judgment.  On  such  a  motion  the  court  cannot 
know  that  the  slanderous  words  were  pertinent,  or  that  the  plaintiff 
did  not  satisfy  the  jury  that  they  were  not  only  pertinent  to  the  mat- 
ter in  question  before  the  court,  but  also  that  the  defendant  spoke 


470  HASTINGS    V.    LUSK.  [CHAP.    XII. 

them  with  a  malicious  intent,  for  the  mere  purpose  of  defaming  the 
plaintiff  and  wounding  his  feelings.  Such  is  the  effect  of  the  decision 
of  the  Supreme  Court  both  in  the  case  of  McClaughry  v.  Wetmore,  6 
Johns.  E.  82,  decided  nearly  thirty  years  ago,  and  the  more  recent 
case  of  Ring  v.  Wheeler,  to  which  I  have  before  referred. 

Each  of  the  counts  in  the  plaintiff's  declaration  in  this  case  con- 
tains more  or  less  slanderous  expressions,  imputing  the  crime  of 
perjur}^,  in  language  which  prima  facie  could  not  have  been  pertinent 
to  any  question  before  the  court,  for  it  does  not  appear  to  have  been 
addressed  to  the  court,  but  to  the  plaintiff  himself,  who  was  a  witness 
there;  and  if  the  plaintiff  used  all  the  abusive  language  towards  or 
in  reference  to  the  witness  which  is  stated  in  either  of  those  counts, 
although  some  of  it  might  have  been  relevant  to  the  matter  in  ques- 
tion, no  jury  could  hesitate  in  coming  to  a  correct  conclusion  whether 
that  which  was  not  pertinent  was  uttered  in  good  faith  or  with  a 
malicious  intent  to  defame  the  plaintiff ;  although  the  defendant  must 
have  proved  that  he  had  great  provocation  to  excuse  all  this  harsh 
language,  or  no  honest  jury  could  have  given  a  verdict  of  only  six 
cents  against  him. 

The  defence  in  this  case  is  set  up  by  several  special  pleas  in  addi- 
tion to  the  general  issue;  and  the  objection  urged  by  the  third  point 
of  the  plaintiff  in  error  is,  that  although  the  declaration  may  have 
been  prima  facie  sufficient,  the  replications  are  bad,  and  sufficient  is 
admitted  upon  the  whole  record  to  constitute  a  good  defence.  On  the 
other  hand,  it  is  urged  that  if  there  are  any  immaterial  issues  the  pleas 
are  bad,  and  as  the  defendant  committed  the  first  fault  in  pleading, 
it  is  not  a  case  for  a  repleader.  I  have  examined  the  special  pleas 
particularly,  and  think  either  of  them  would  have  been  held  good 
upon  general  demurrer,  if  I  am  correct  in  the  conclusion  at  which  I 
have  arrived  as  to  the  law  of  the  case.  It  is  expressly  stated  by  Mr. 
Justice  Buller  that  the  defendant  may,  by  way  of  justification,  plead 
that  the  words  were  spoken  by  him  as  counsel  in  a  cause,  and  that 
they  were  pertinent  to  the  matter  in  question,  or  he  may  give  them 
in  evidence  under  the  general  issue,  for  they  prove  him  not  to  have 
been  guilty  of  speaking  the  words  maliciously.  Bull.  N.  P.  10.  See 
also  Lord  Cromwell's  Case,  4  Coke's  R.  14.  The  two  first  special 
pleas,  therefore,  showing  that  slanderous  words  stated  in  tlie  declara- 
tion were  spoken  by  the  defendant  in  the  judicial  proceeding,  while 
conducting  his  own  defence  without  counsel,  and  that  they  were 
pertinent  to  the  matter  in  question,  constituted  a  good  bar  to  the 
action,  as  they  brought  the  case  within  the  second  class  of  privileged 
comrrjunicalious  wbich  T  have  noticed.  To  eacli  of  these  pleas  there 
were  two  replications  (as  authorized  by  the  Revised  Statutes  upon  a 
special  application  to  the  court),  each  of  which  replications  was  a 
good  answer  to  the  plea:  one  replication  traversed  the  fact  that  the 
words   spoken   were   either  pertinent   or   material   to  the   matter   in 


CHAP.    XII.]  SLANDER   AND   LIBEL.  471 

question,  and  tlie  other  traversed  the  allegation  in  the  plea  that  the 
words  were  used  by  the  defendant  in  the  matter  in  question  before 
the  justice,  ivJiile  conducting  Jds  defence  therein;  and  as  the  jury 
found  a  verdict  for  the  plaintiff  on  all  the  issues,  neither  of  those 
pleas  can  aid  the  defendant.  In  the  last  special  plea  the  defendant, 
in  addition  to  the  facts  stated  in  the  two  preceding  pleas,  also  averred 
that  the  words  were  spoken  without  any  malice  towards  the  plaintiff, 
and  therefore,  if  I  am  right  in  supposing  that  a  party  is  not  answer- 
able for  words  innocently  spoken  by  him  in  conducting  his  defence 
in  a  judicial  proceeding,  and  without  malice,  although  they  may  not 
have  been  strictly  pertinent,  perhaps  a  replication  merely  denying 
the  pertinency  of  the  words  would  not  have  been  a  sufficient  answer 
to  this  plea.  The  first  replication  to  this  plea  docs,  however,  in  sub- 
stance, put  in  issue  the  question  of  malicious  intent  as  well  as  the 
pertinency  of  the  slanderous  words,  although  the  malice  is  only  stated 
by  way  of  inducement  to  the  traverse  of  the  malicious  intent.  As  that 
part  of  the  replication  directly  negatives  the  allegation  in  the  plea 
which  it  was  material  to  negative  in  connection  with  the  traverse  of 
the  pertinency  of  the  slanderous  words,  its  effect,  after  verdict,  must 
be  different  from  the  case  of  a  replication  which  merely  sets  up  new 
matter  as  inducement  to  the  traverse,  and  then  traverses  an  immate- 
rial allegation  in  the  plea,  leaving  that  which  was  most  material  un- 
answered. It  is  in  this  case,  at  most,  but  a  mis  joining  of  the  issue, 
v,^hich  is  cured  after  verdict;  and  the  jury  have  found  in  terms,  in 
reference  to  this  issue,  that  the  words  were  spoken  falsely  and  mali- 
ciously, and  that  they  were  not  pertinent  and  material.  Again,  the 
second  replication  to  this  plea  is  a  full  answer  to  it,  even  if  the  first 
replication  is  stricken  entirely  out  of  the  record;  and  upon  the  last 
replication  the  jury  have  found  that  the  slanderous  words  were  not 
uttered  by  the  defendant  while  conducting  his  own  defence  on  the 
examination  before  the  justice,  as  alleged  in  his  last  special  plea. 

Eor  these  reasons  I  think  the  Supreme  Court  were  right  in  refusing 
to  arrest  the  judgment,  and  that  their  decision  should  be  affirmed. 

The  court  being  unanimously  of  the  same  opinion,  the  judgment 
of  the  Supreme  Court  was  accordingly 

Affirmed. 


MERIVALE  V.  CAESON". 

Court  of  Appeal  of  England,  1887.    20  Q.  B.  D.  275. 

Appeal  by  the  defendant  against  the  refusal  of  a  Divisional  Court 
to  allow  a  new  trial  or  to  enter  judgment  for  the  defendant. 

The  action  was  brought  to  recover  damages  in  respect  of  an  alleged 
libel.    At  the  trial  before  Field,  J.,  it  appeared  that  the  plaintiff  and 


472  MERIVALE   V.    CARSON.  [CHAP.    XII. 

his  wife  were  the  joint  authors  of  a  play  called  "  The  Whip  Hand." 
The  defendant  was  the  editor  of  a  theatrical  newspaper  called  "  The 
Stage."  Early  in  May,  1886,  the  play  was  performed  at  a  theatre 
in  Liverpool,  On  May  7,  a  criticism  of  the  play  was  puhlished  in  the 
defendant's  newspaper.  The  part  of  the  article  charged  to  be  libellous 
was  as  follows :  — 

"  The  Whip  Hand,  the  joint  production  of  Mr.  and  Mrs.  Herman 
Merivale,  gives  us  nothing  but  a  hash-up  of  ingredients  which  have 
been  used  ad  nauseam,  until  one  rises  in  protestation  against  the 
loving,  confiding,  fatuous  husband  with  the  naughty  wife  and  her 
double  existence,  the  good  male  genius,  the  limp  aristocrat,  and  the 
villainous  foreigner.  And  why  dramatic  authors  will  insist  that  in 
modern  society  comedies  the  villain  must  be  a  foreigner,  and  the 
foreigner  must  be  a  villain,  is  only  explicable  on  the  ground,  we  sup- 
pose, that  there  is  more  or  less  of  romance  about  such  gentry.  It  is 
more  in  consonance  with  accepted  notions  that  your  Continental 
croupier  would  make  a  much  better  fictitious  prince,  marquis,  or 
count  than  would,  say,  an  English  billiard-marker  or  stable-lout. 
And  so  the  Marquis  Colonna  in  The  Whip  Hand  is  offered  up  by 
the  authors  upon  the  altar  of  tradition  and  sacrificed  in  the  usual 
manner  when  he  gets  too  troublesome  to  permit  of  the  reconciliation 
of  husband  and  wife,  and  lover  and  maiden,  and  is  proved,  also 
much  as  usual,  to  be  nothing  more  than  a  kicked-out  croupier." 

The  innuendo  suggested  was  that  the  article  implied  that  the  play 
was  of  an  immoral  tendency.  It  was  admitted  that  there  was  no 
adulterous  wife  in  the  play. 

Field,  J.,  in  the  course  of  his  summing-up  to  the  jury,  said :  "  The 
question  is  first,  whether  this  criticism  bears  the  meaning  which  the 
plaintiffs  put  upon  it.  If  it  is  a  fair,  temperate  criticism,  and  does 
not  bear  that  meaning,  then  your  verdict  will  be  for  the  defendant. 
...  It  is  not  for  a  moment  suggested  by  any  one  that  the  defendant 
is  animated  by  the  smallest  possible  malice  towards  the  plaintiffs. 
.  .  .  The  malice  which  is  necessary  in  this  action  is  one  which,  if 
it  existed  at  all,  will  be  because  the  defendant  has  exceeded  his  right 
of  criticism  upon  the  play.  You  liave  the  play  before  you;  you  must 
judge  for  yourselves.  If  it  is  no  more  than  fair,  honest,  independent, 
bold,  even  exaggerated  criticism,  then  your  verdict  will  bo  for  the 
defendant.  It  is  for  the  plaintiffs  to  make  out  their  case.  They  have 
to  satisfy  you  that  it  is  more  than  that;  otherwise  they  cannot  com- 
plain. If  you  are  satisfied  upon  tlie  evidence  that  it  is  more  than  that, 
then  you  will  give  your  verdict  for  the  plaintiffs." 

The  jury  found  a  verdict  for  the  plaintiffs  with  one  shilling  dam- 
ages, and  <ho  judge  entered  judgment  for  the  plaintiffs  accordingly, 
and  df'flinf'd  to  deprive  them  of  costs. 

The  defendant  appealed. 

Lord  Esiier,  M.  R.    This  action  is  brought  in  respect  of  an  alleged 


CHAP.    XII.]  SLANDER   AND    LIBEL.  473 

libel  contained  in  a  criticism  by  the  defendant  upon  a  play  written 
by  the  plaintilTs.  The  first  thing  to  be  considered  is,  what  are  the 
questions  which  in  such  a  case  ought  to  be  left  to  the  jury.  The  first 
question  to  be  left  to  them  is,  what  is  the  meaning  of  the  alleged  libel  ? 
The  jury  must  look  at  the  criticism,  and  say  what  in  their  opinion 
any  reasonable  man  would  understand  by  it.  I  am  not  prepared  to 
say  that  in  coming  to  their  conclusion  they  would  not  also  have  to 
look  at  the  work  criticised.  That,  however,  is  not  very  material  for 
us  to  consider  now.  The  proper  question  was  put  to  the  jury  in  the 
present  case. 

Two  interpretations  of  the  defendant's  article  were  placed  before 
them.  One  was  that  it  meant  that  the  play  is  founded  upon  adultery, 
without  containing  any  stigma  on  the  fact  that  it  is  so  founded.  The 
defendant's  article  is  alleged  to  be  libellous  in  that  it  attributed  to  the 
plaintiffs  that  they  had  written  a  play  founded  upon  adultery,  without 
any  objection  to  it  on  their  part,  in  other  words,  that  they  had  written 
an  immoral  play.  On  behalf  of  the  defendant  it  was  said  that  the 
article  had  no  such  meaning,  that  the  expression  "  naughty  wife  " 
does  not  mean  "  adulterous  wife."  It  would  not  have  that  meaning 
in  every  case,  but  the  question  is  whether,  looking  at  the  context  of  the 
article,  it  has  that  meaning.  If  the  court  should  come  to  the  conclu- 
sion that  the  expression  could  not  by  any  reasonable  man  be  thought 
to  have  that  meaning,  they  could  overrule  the  verdict  of  the  jury; 
otherwise  the  question  is  for  the  jury. 

What  is  the  next  question  to  be  put  to  the  jury?  Are  they  to  be 
told  that  the  criticism  of  a  play  is  a  privileged  occasion,  within  the 
well-settled  meaning  of  the  word  "  privilege,"  and  that  their  verdict 
must  go  for  the  defendant  unless  the  plaintiff  can  prove  malice  in 
fact,  that  is,  that  the  writer  of  the  article  was  actuated  by  an  indirect 
or  malicious  motive?  I  think  it  is  clear  that  that  is  not  the  law, 
and  that  it  was  so  decided  in  Campbell  v.  Spottiswoode,  3  B.  &  S.  769, 
which  has  never  been  overruled.  All  the  judges,  both  before  and  ever 
since  that  case,  have  acted  upon  the  view  there  expressed,  that  a 
criticism  upon  a  written  published  work  is  not  a  privileged  occasion. 
Blackburn,  J.,  in  his  judgment,  shows  why  it  is  not  a  privileged 
occasion.  A  privileged  occasion  is  one  on  which  the  privileged  person 
is  entitled  to  do  something  which  no  one  who  is  not  within  the  priv- 
ilege is  entitled  to  do  on  that  occasion.  A  person  in  such  a  position 
may  say  or  write  about  another  person  things  which  no  other  person 
in  the  kingdom  can  be  allowed  to  say  or  write.  But  in  the  case  of  a 
criticism  upon  a  published  work  every  person  in  the  kingdom  is 
entitled  to  do  and  is  forbidden  to  do  exactly  the  same  things,  and 
therefore  the  occasion  is  not  privileged. 

Therefore  the  second  question  to  be  put  to  the  jury  is,  whether  the 
alleged  libel  is  or  is  not  a  libel.  The  form  in  which  that  question 
should  be  put  is,  I  think,  best  expressed  by  Crompton,  J.,  in  Camp- 


474  MERIVALE   V.    CAESON.  [CHAP.    XII. 

bell  V.  Spottiswoode,  3  B.  &  S.  at  p.  778.  He  says :  "  Nothing  is  more 
important  than  that  fair  and  full  latitude  of  discussion  should  be 
allowed  to  writers  upon  any  public  matter,  whether  it  be  the  conduct 
of  public  men,  or  the  proceedings  in  courts  of  justice,  or  in  Parlia- 
ment, or  the  publication  of  a  scheme,  or  a  literary  work.  But  it  is  al- 
ways to  be  left  to  the  jury  to  say  whether  the  publication  has  gone 
beyond  the  limits  of  a  fair  comment  on  the  subject-matter  discussed. 
A  writer  is  not  entitled  to  overstep  those  limits  and  impute  base  and 
sordid  motives  which  are  not  warranted  by  the  facts;  and  I  cannot 
for  a  moment  think  because  he  has  a  bona  fide  belief  that  he  is  pub- 
lishing what  is  true,  that  is  any  answer  to  an  action  for  libel."  He 
says  that  upon  the  answer  to  the  question  there  stated  it  depends 
whether  the  article  upon  which  the  action  is  brought  is  or  is  not  a 
libel.  The  question  is  not  whether  the  article  is  privileged,  but 
whether  it  is  a  libel. 

What  is  the  meaning  of  a  "  fair  comment "  ?  I  think  the  meaning 
is  this:  Is  the  article  in  the  opinion  of  the  jury  beyond  that  which 
any  fair  man,  however  prejudiced  or  however  strong  his  opinion  may 
be,  would  say  of  the  work  in  question  ?  Every  latitude  must  be  given 
to  opinion  and  to  prejudice,  and  then  an  ordinary  set  of  men  with 
ordinary  judgment  must  say  whether  any  fair  man  would  have  made 
such  a  comment  on  the  work.  It  is  very  easy  to  say  what  would  be 
clearly  beyond  that  limit;  if,  for  instance,  the  writer  attacked  the 
private  character  of  the  author.  But  it  is  much  more  difficult  to  say 
what  is  within  the  limit.  That  must  depend  upon  the  circumstances 
of  the  particular  case. 

I  think  the  right  question  was  really  left  by  Field,  J.,  to  the  jury  in 
the  present  case.  No  doubt  you  can  find  in  the  course  of  his  sum- 
ming-up some  phrases  which,  if  taken  alone,  may  seem  to  limit  too 
much  the  question  put  to  the  jury.  But  when  you  look  at  the  sum- 
ming-up as  a  whole,  I  think  it  comes  in  substance  to  the  final  ques- 
tion which  was  put  by  the  judge  to  the  jury :  "  If  it  is  no  more  than 
fair,  honest,  independent,  bold,  even  exaggerated  criticism,  then  your 
verdict  will  be  for  the  defendants."  He  gives  a  very  wide  limit,  and 
I  think  rightly.  Mere  exaggeration,  or  even  gross  exaggeration, 
would  not  make  the  comment  unfair.  However  wrong  the  opinion 
expressed  may  be  in  point  of  truth,  or  however  prejudiced  the  writer, 
it  may  still  be  within  the  prescribed  limit.  The  question  which  the 
jury  must  consider  is  this,  —  would  any  fair  man,  however  preju- 
diced he  may  be,  however  exaggerated  or  obstinate  his  views,  have 
said  that  which  this  criticism  has  said  of  the  work  which  is  criticised? 
If  it  goes  beyond  that,  then  you  must  find  for  the  plaintiff;  if  you 
are  not  satisfied  that  it  does,  then  it  falls  within  the  allowed  limit, 
and  there  is  no  libel  at  all. 

I  cannot  doubt  that  the  jury  were  justified  in  coming  to  the  con- 
clusion to  which  they  did  come,  when  once  they  had  made  up  their 


CHAP.    XII.]  SLANDER   AND   LIBEL.  475 

minds  as  to  the  meaning  of  the  words  used  in  the  article,  viz.,  that 
the  plaintitfs  had  written  an  obscene  play,  and  no  fair  man  could  have 
said  that.  There  was  therefore  a  complete  misdescription  of  the 
plaintiffs'  work,  and  the  inevitable  conclusion  was  that  an  imputation 
was  cast  upon  the  characters  of  the  authors.  Even  if  I  had  thought 
that  the  right  direction  had  not  been  given  to  the  Jury,  I  should  have 
declined  to  grant  a  new  trial,  for  the  same  verdict  must  inevitably 
have  been  found  if  the  jury  had  been  rightly  directed. 

Another  point  which  has  been  discussed  is  this:  It  is  said  that 
if  in  some  other  case  the  alleged  libel  would  not  be  beyond  the  limits 
of  fair  criticism,  and  it  could  be  shown  that  the  defendant  was  not 
really  criticising  the  work,  but  was  writing  with  an  indirect  and  dis- 
honest intention  to  injure  the  plaintiffs,  still  the  motive  would  not 
make  the  criticism  a  libel.  I  am  inclined  to  think  that  it  would,  and 
for  this  reason,  that  the  comment  would  not  then  really  be  a  criticism 
of  the  work.  The  mind  of  the  writer  would  not  be  that  of  a  critic, 
but  he  would  be  actuated  by  an  intention  to  injure  the  author. 

In  my  opinion  this  appeal  must  be  dismissed. 

BowEN,  L.  J.  .  .  .  The  criticism  is  to  be  "  fair ; "  that  is,  the 
expression  of  it  is  to  be  fair.  The  only  limitation  is  upon  the  mode 
of  expression.  In  this  country  a  man  has  a  right  to  hold  any  opinion 
he  pleases,  and  to  express  his  opinion  provided  that  he  does  not  go 
beyond  the  limits  which  the  law  calls  "  fair ; "  and  although  we  can- 
not find  in  any  decided  case  an  exact  and  rigid  definition  of  the  word 
"fair,"  this  is  because  the  judges  have  always  preferred  to  leave' the 
question  what  is  "  fair  "  to  the  jury.  ...  It  must  be  assumed  that 
a  man  is  entitled  to  entertain  any  opinion  he  pleases,  however  wrong, 
exaggerated,  or  violent  it  may  be,  and  it  must  be  left  to  the  jury  to 
say  whether  the  mode  of  expression  exceeds  the  reasonable  limits  of 
fair  criticism. 

In  the  case  of  literary  criticism  it  is  not  easy  to  conceive  what 
would  be  outside  that  region,  unless  the  writer  went  out  of  his  way 
to  make  a  personal  attack  on  the  character  of  the  author  of  the  work 
which  he  was  criticising.  In  such  a  case  the  writer  would  be  going 
beyond  the  limits  of  criticism  altogether,  and  therefore  beyond  the 
limits  of  fair  criticism.  Campbell  v.  Spottiswoode,  3  B.  &  S.  769,  was 
a  case  of  that  kind,  and  there  the  jury  were  asked  whether  the  criti- 
cism was  fair,  and  they  were  told  that,  if  it  attacked  the  private 
character  of  the  author  it  would  be  going  beyond  the  limits  of  fair 
criticism.  Still  there  is  another  class  of  cases  in  which,  as  it  seems 
to  me,  the  writer  would  be  travelling  out  of  the  region  of  fair  criti- 
cism, —  I  mean  if  he  imputes  to  the  author  that  he  has  written 
something  which  in  fact  he  has  not  written.  That  woulcl  be  a  mis- 
description of  the  work.  There  is  all  the  difference  in  the  world  be- 
tween saying  that  you  disapprove  of  the  character  of  a  work,  and  that 
you  think  it  has  an  evil  tendency,  and  saying  that  a  work  treats  adul- 


476  DAVIS    AND    SONS    V.    SIIKPSTONE.  [CIIAP.    XII. 

ter}'  cavalierly  when  in  fact  there  is  no  adultery  at  all  in  the  story. 
A  jury  would  have  the  right  to  consider  the  latter  beyond  the  limits 
of  fair  criticism. 

Appeal  dismissed. 


DAVIS  &  SONS  V.  SHEPSTONE. 

Privy  Council  of  England,  March,  1886.     11  A.  C.  187. 

The  case  is  stated  in  the  opinion. 

Lord  Hersciiell,  L.  C.  This  is  an  appeal  from  a  judgment  of  the 
Supreme  Court  of  the  Colony  of  Natal  refusing  a  new  trial  in  an  ac- 
tion brought  against  the  appellants  in  which  the  respondent  obtained 
a  verdict  for  £500  damages. 

The  action  was  brought  to  recover  damages  for  alleged  libels  pub- 
lished by  the  appellants  in  the  Natal  Witness  newspaper  in  the 
months  of  March  and  May,  1883. 

The  respondent  was,  in  December,  1883,  appointed  Eesident  Com- 
missioner in  Zululand,  and  proceeded  in  the  discharge  of  his  duties  to 
the  Zulu  reserve  territory.  In  the  month  of  March,  1883,  the  appel- 
lants published  in  an  issue  of  their  newspaper  serious  allegations  with 
reference  to  the  conduct  of  the  respondent  whilst  in  the  execution  of 
his  office  in  the  reserve  territory.  They  stated  that  he  had  not  only 
himself  violently  assaulted  a  Zulu  chief,  but  had  set  on  his  native 
policemen  to  assault  others.  Upon  the  assumption  that  these  state- 
ments were  true,  they  commented  upon  his  conduct  in  terms  of  great 
severity,  observing,  "  Wfe  have  always  regarded  Mr.  Shepstone  as  a 
most  unfit  man  to  send  to  Zululand,  if  for  no  other  reason  than  this, 
that  the  Zulus  entertain  towards  him  neither  respect  nor  confidence. 
To  these  disqualifications  he  has  now,  if  our  information  is  correct, 
added  another  which  is  far  more  damnatory.  Such  an  act  as  be  has 
now  been  guilty  of  cannot  be  passed  over,  if  any  kind  of  friendly  rela- 
tions are  to  be  maintained  between  the  colony  and  Zululand.  There 
are  difficulties  enough  in  that  direction  withoi^t  need  for  them  to  be 
increased  by  the  headstrong  and  almost  insane  imprudence  and  want 
of  self-respect  of  the  offiicial  who  unworthily  represents  the  government 
of  the  Queen." 

In  the  same  issue,  under  the  heading  "  Zululand,"  there  appeared  a 
statement  that  four  messengers  had  come  from  Natal  to  Zululand, 
from  whom  details  had  been  obtained  of  the  respondent's  treatment  of 
certain  chiefs  of  the  reserved  territory  who  had  visited  Cetewayo,  and, 
what  purported  to  be  the  account  derived  from  these  messengers  of 
the  assault  and  abusive  language  of  which  the  respondent  had  been 
gnilty,  was  given  in  dc^tail. 


CHAP.   XII.]  SLANDER   AND   LIBEL.  477 

On  the  IGtIi  of  May,  1883,  the  appellants  published  a  further 
article,  relating  to  the  respondent,  which  commenced  as  follows :  — 
"  Some  time  ago,  we  stated  in  these  columns  that  Mr.  John  Shep- 
stone,  whilst  in  Zululand,  had  committed  a  most  unprovoked  and  alto- 
gether incomprehensible  assault  upon  certain  Zulu  chiefs.  At  the 
time  the  statement  was  made  a  good  deal  of  doubt  was  thrown  upon 
the  truth  of  the  story.  We  are  now  in  a  position  to  make  public  full 
details  of  the  affair,  which  the  closest  investigation  will  prove  to  be 
correct.  A  representative  of  this  journal,  learning  that  a  deputation 
had  come  to  Natal  to  complain  of  the  attack,  met  five  of  the  number, 
and  in  the  presence  of  the  competent  interpreters  took  down  the 
stories  of  each  man." 

The  article  then  gave  at  length  the  statements  so  taken  down,  which 
disclosed,  if  true,  the  grossest  misconduct  on  the  part  of  the  respond- 
ent. It  was  in  respect  of  these  publications  of  the  appellants  that  the 
action  was  brought  by  the  respondent. 

The  appellants  by  their  defence  averred  that  the  conduct  of  the 
plaintiff  as  British  Kesident  Commissioner  was  a  matter  of  general 
public  interest  affecting  the  territory  of  Natal,  and  that  the  alleged 
libels  constituted  a  fair  and  accurate  report  of  the  information 
brought  to  the  Governor  of  Natal  and  published  in  the  colony  by  mes- 
sengers from  Zululand  and  its  King  as  to  the  conduct  of  the  plaintiff 
in  the  discharge  of  the  duties  of  his  office,  and  a  fair  and  impartial 
comment  upon  the  conduct  of  the  plaintiff  in  his  public  capacity  pub- 
lished bona  fide  and  without  malice. 

The  case  came  on  for  trial  before  Mr.  Justice  Wragg  and  a  jury  on 
the  4th  of  September,  1883,  when  it  was  proved  that  the  allegations 
of  misconduct  made  against  Mr.  Shepstone  were  absolutely  without 
foundation,  and  no  attempt  was  made  to  support  them  by  evidence. 
It  appeared  that  the  messengers  from  whom  the  statements  contained 
in  the  issue  in  March  were  derived  had  come  from  Zululand  to  see  the 
Bishop  of  Natal,  and  that  their  statements  had  been  conveyed  to  the 
editor  of  a  newspaper  by  a  letter  from  the  bishop.  The  statements 
contained  in  the  issue  of  May  were  communicated  by  a  Mr.  Watson, 
who  was  connected  with  the  staff  of  the  newspaper,  and  who  had 
sought  and  obtained  an  interview  with  certain  Zulus  when  on  their 
way  to  convey  a  message  from  the  King  to  the  Governor  of  Natal. 

At  the  close  of  the  evidence  the  learned  judge  summed  up  the  case 
to  the  jury,  who  returned  a  verdict  for  the  plaintiff,  the  present  re- 
spondent, for  £500. 

Application  was  afterwards  made  to  the  Supreme  Court  to  grant  a 
new  trial,  but  this  application  was  refused,  and  the  present  appeal  was 
then  brought.  The  appellants  rested  their  appeal  upon  two  grounds, 
first,  that  the  learned  judge  misdirected  the  jury  in  leaving  to  them 
the  question  of  privilege  and  in  not  telling  them  that  the  occasion 
was  a  privileged  one.    The  second  ground  insisted  upon  was  that  the 


478  DAVIS   AND    SONS    V.    SHEPSTONE.  [CHAP.    XII. 

damages  were  excessive.  Their  Lordships  are  of  opinion  that  the 
contention  that  the  learned  judge  ought  to  have  told  the  jury  that  the 
occasion  was  a  privileged  one,  and  that  the  plaintiff  could  only  suc- 
ceed on  proof  of  express  malice,  is  not  well  founded. 

There  is  no  doubt  that  the  public  acts  of  a  public  man  may  law- 
fully be  made  the  subject  of  fair  comment  or  criticism,  not  only  by 
the  press,  but  by  all  members  of  the  public.  But  the  distinction  can- 
not be  too  clearly  borne  in  mind  between  comment  or  criticism  and  al- 
legations of  fact,  such  as  that  disgraceful  acts  have  been  committed, 
or  discreditable  language  used.  It  is  one  thing  to  comment  upon  or 
criticise,  even  with  severity,  the  acknowledged  or  proved  acts  of  a 
public  man,  and  quite  another  to  assert  that  he  has  been  guilty  of 
particular  acts  of  misconduct. 

In  the  present  case  the  appellants,  in  the  passages  which  were  com- 
plained of  as  libellous,  charged  the  respondent,  as  now  appears  with- 
out foundation,  with  having  been  guilty  of  specific  acts  of  misconduct, 
and  then  proceeded  on  the  assumption  that  the  charges  were  true,  to 
comment  upon  his  proceedings  in  language  in  the  highest  degree  of- 
fensive and  injurious;  not  only  so,  but  they  themselves  vouched  for 
the  statements  by  asserting  that  though  some  doubt  had  been  thrown 
upon  the  truth  of  the  story,  the  closest  investigation  would  prove  it  to 
be  correct.  In  their  Lordships'  opinion  there  is  no  warrant  for  the 
doctrine  that  defamatory  matter  thus  published  is  regarded  by  the  law 
as  the  subject  of  any  privilege. 

It  was  insisted  by  the  counsel  for  the  appellants  that  the  publica- 
tions were  privileged,  as  being  a  fair  and  accurate  report  of  the  state- 
ments made  by  certain  messengers  from  King  Cetewayo  upon  a  sub- 
ject of  public  importance.  It  has,  indeed,  been  held  that  fair  and 
accurate  reports  of  proceedings  in  Parliament  and  in  Courts  of  Jus- 
tice are  privileged,  even  though  they  contain  defamatory  matter  af- 
fecting the  character  of  individuals. 

But  in  the  case  of  Purcell  v.  Sowler,^  the  Court  of  Appeal  ex- 
pressly refused  to  extend  the  privilege  even  to  the  report  of  a  meeting 
of  poor  law  guardians,  at  which  accusations  of  misconduct  were  made 
against  their  medical  officer.  And  in  their  Lordships'  opinion  it  is 
clear  tliat  it  cannot  be  extended  to  a  report  of  statements  made  to  the 
Bishop  of  Natal,  and  by  him  transmitted  to  the  appellants,  or  to  state- 
ments made  to  a  reporter  in  the  employ  of  the  appellants,  who  for  the 
purposes  of  the  newspaper,  sought  an  interview  with  messengers  on 
their  way  to  lay  a  complaint  before  the  governor. 

The  language  used  by  the  learned  judge  in  summing  up  the  present 
case  to  the  jury  is  open  to  some  criticism,  and  does  not  contain  so  clear 
and  complete  an  exposition  of  the  law  as  might  be  desired.  But  in 
their  Lordships'  opinion,  so  far  as  it  erred,  it  erred  in  being  too 

'  2  c.  r.  n.  215. 


CHAP.    XII.  I  SLANDER   AND    LIBEL.  4/9 

favorable  to  the  appellants,  and  it  is  not  open  to  any  complaint  on 
their  part. 

The  only  question  that  remains  is  as  to  the  amount  of  damages. 
The  assessment  of  these  is  peculiarly  the  province  of  the  jury  in  an 
action  of  libel.  The  damages  in  such  an  action  are  not  limited  to 
the  amount  of  pecuniary  loss  which  the  plaintiff  is  able  to  prove.  And 
their  Lordships  see  no  reason  for  saying  that  the  damages  awarded 
were  excessive  or  for  interfering  with  the  finding  of  the  jury  in  this 
respect. 

They  will,  therefore,  humbly  advise  Her  Majesty  that  the  judg- 
ment appealed  against  should  be  affirmed  and  the  appeal  dismissed 
with  costs. 

Judgment  affirmed. 


4^0  BKOWN    V.   MANTER.  |_OHAP.   XIII. 


CHAPTER   XIII. 

TRESPASS. 

BROWN  V.  MANTER. 
Supreme  Court  of  New  Hampshire,  July,  1851.    22  N.  H.  468. 

Trespass,  for  breaking  and  entering  the  plaintiff's  close,  particu- 
larly described  in  the  writ,  situated  in  Auburn,  and  cutting  down  and 
carrying  away  twelve  of  the  plaintiff's  trees  there  growing,  and  five 
cords  of  the  plaintiff's  wood;  and  other  wrongs,  &c. 

Plea,  the  general  issue. 

It  was  admitted  upon  the  trial,  that  the  defendant  cut  down,  upon 
the  land  described  in  the  plaintiff's  writ,  seven  pine  trees  of  the  value 
of  two  dollars  and  twenty  cents  each,  and  drew  them  away. 

In  support  of  his  title  the  plaintiff  offered  in  evidence  a  deed  from 
Benjamin  Pierce  and  Samuel  Pierce  to  iSTathaniel  Brown,  dated  Sep- 
tember 27,  1777.  This  deed  did  not  appear  to  have  been  acknowl- 
edged, or  the  execution  of  it  proved,  but  it  appeared  to  have  been 
recorded  February  10th,  1847.  The  defendant  objected  to  its  admis- 
sion, solely  on  the  ground  that  it  had  not  been  acknowledged,  but  the 
Court  admitted  it,  subject  to  that  exception. 

It  appeared  that  the  plaintiff  claimed  the  westerly  part  of  the  land 
described  in  his  writ,  by  virtue  of  this  deed;  being  a  different  title 
from  that  under  which  he  claimed  the  residue.  The  precise  location 
of  the  land  conveyed  by  that  deed  being  uncertain,  it  was  a  question 
for  the  jury  whether  the  trees  were  cut  on  that  part  or  not;  but  there 
was  no  doubt  that  the  defendant  drew  the  same  trees  across  a  part 
of  the  land  described  in  that  deed;  and  the  plaintiff  contended,  that 
if  the  jury  found  that  the  trees  were  not  cut  on  his  land,  still  he  was 
entitled  to  recover  some  damages  for  the  trespass  in  drawing  them 
across  his  land. 

The  defendant  requested  the  Court  to  instruct  the  jury  that  if  the 
plaintiff  did  not  own  the  land  where  the  trees  stood  he  could  not 
rofovor,  that  being  the  place  where  the  only  injury  alleged  was  done. 
But  the  Court  declined  to  give  such  instruction,  and  the  defendant 
excepted. 

The  jury  found  a  verdict  for  tlie  plaintiff  for  nine  dollars  damages, 
nnd  tlie  dffcndant  moved  to  set  it  aside  l)y  reason  of  said  exceptions. 
And  the  qufslions  arising  upon  snid  motion  were  reserved  and  as- 
signed to  this  Court  for  determination. 


CHAP.    XIII.]  TRESPASS.  481 

Eastman,  J.  The  exception  taken  to  the  deed  from  the  Pierces 
to  Brown  cannot  prevail.  The  object  of  the  enrolment  of  a  deed  is  to 
give  public  notice  to  all,  of  the  sale  and  transfer  of  the  property  con- 
veyed. So  far  as  the  parties  are  concerned  or  those  who  have  notice 
of  tlie  existence  of  the  deed,  the  enrolment  is  not  essential  to  its 
validity.  The  statute  of  enrolments  was  enacted  for  the  benefit  of 
subsequent  purchasers  and  creditors,  and  not  for  the  benefit  of  wrong- 
doers or  strangers.  But  an  attachment  or  purchase,  made  with  the 
knowledge  of  the  existence  of  a  prior  unrecorded  deed,  secures  no 
rights  against  the  holder  of  such  deed.  Such  is  the  general  doctrine, 
and  the  authorities  to  the  point  are  numerous.  Jackson  v.  Burgett,  10 
Johns.  Eep.  457;  Jackson  v.  Page,  4  Wendell,  585;  Jackson  v.  Leek, 
19  Wendell,  339;  Connecticut  v.  Brandish,  14  Mass.  300;  Adams  v. 
Cuddy,  13  Pick.  Eep.  460;  Bush  v.  Golden,  17  Conn.  Rep.  594;  Butler 
V.  Stevens,  26  Maine  Rep.  484;  Corliss  v.  Corliss,  8  Vermont  Rep. 
373;  Garwood  v.  Garwood,  4  Halsted,  (N.  J.)  Rep.  193;  Ohio  Life 
Ins.  Co.  V.  Ledyard,  8  Alabama  Rep.  866;  Irvin  v.  Smith,  17  Ohio 
Rep.  226;  McFall  v.  Sherrard,  1  Harper,  (S.  C.)  Rep.  295;  Boling  v. 
Ewing,  9  Dana,  (Ken.)  Rep.  76;  Currie  v.  Donald,  2  Wash.  (Vir.) 
Rep.  58;  Montgomery  v.  Dorion,  6  N.  H.  Rep.  250;  Odiorne  v.  Mason, 
9  N.  H.  Rep.  24. 

The  acknowledgment  of  a  deed  is  the  evidence  upon  which  the 
Register  acts  in  making  the  record ;  and  the  object  of  the  acknowledg- 
ment is  to  procure  the  enrolment.  Until  acknowledged  it  is  not  a 
proper  matter  for  record.  But,  as  between  the  parties  to  the  deed, 
the  acknowledgment  adds  nothing  to  its  validity.  Against  the  grantor 
and  his  heirs,  and  also  against  a  stranger  having  knowledge  of  its 
existence,  the  original  instrument  may  be  introduced  in  evidence  with- 
out acknowledgment.  Wark  v.  Willard,  13  N.  H.  Rep.  389;  Odiorne 
V.  Mason,  9  IST.  H.  Rep.  24;  Montgomery  v.  Dorion,  6  N.  H.  Rep.  250; 
Dole  V.  Thurlow,  12  Met.  Rep.  157;  Blood  v.  Blood,  23  Pick.  80;  Mar- 
shall V.  Fiske,  6  Mass.  Rep.  30;  Doe  v.  Reed,  2  Scam.  (111.)  Rep.  371; 
Strong  V.  Smith,  3  McLean,  (Ind.)  Rep.  362. 

Upon  the  facts  presented  in  this  case,  the  ruling  of  the  Court 
in  admitting  the  deed  in  evidence  was  correct. 

Neither  can  the  exception  be  sustained  which  was  taken  to  the 
ruling  of  the  Court,  declining  to  instruct  the  jury,  that  if  the  plain- 
tiff did  not  own  the  land  where  the  trees  stood,  he  could  not  recover. 

The  gist  of  the  action  of  trespass  is  the  disturbance  of  the  posses- 
sion. If  the  close  is  illegally  entered,  a  cause  of  action  at  once  arises. 
Whatever  is  done  after  the  breaking  and  entering  is  but  aggravation 
of  damages.  Taylor  v.  Cole,  3  Term.  Rep.  292 ;  Van  Lenven  v.  Like, 
1  Comstock's  Rep.  515;  Smith  v.  Ingram,  7  Iredell  Rep.  175;  Dobbs 
V.  Gallidge,  4  Dev.  &  Batt.  Rep.  68 ;  Wendell  v.  Johnson,  8  N.  H.  Rep. 
222;  Ferrin  v.  Simonds,  11  N.  H.  Rep.  263.  Trespass  lies  for  every 
unlawful  intrusion,  though  onlv  the  grass  be  trodden  down.     1  Dev. 


482  HAYTHORN    V.   RDSHFORTH.  [CHAP.    XIII. 

&  Batt.  Rep.  371.  x\nd  in  trespass  for  breaking  the  plaintiff's  close 
and  cutting  down  his  trees,  if  the  plaintiff  fail  to  prove  the  cutting  of 
his  trees,  he  may  still  recover  for  the  breach  of  his  close.  Mundell  v. 
Perry,  2  Gill  &  Johns.  Eep.  193 ;  Curtis  v.  Groat,  6  Johns.  Eep.  168. 
If  the  defendant  had  any  right  to  cross  the  land  he  should  have 
pleaded  it,  or  made  it  appear  in  some  legal  way. 

Judgment  on  the  verdict. 


HAYTHORN  v.  RUSHFORTH. 

Supreme  Court  of  New  Jersey,  September,  1842.     19  N.  J.  160. 

This  was  an  action  of  replevin  brought  in  the  Circuit  Court  of  the 
county  of  Hudson,  to  recover  certain  machinery  for  the  manufactur- 
ing of  woollen  goods. 

The  defendants  pleaded  non  cepit,  and  property  in  themselves.  The 
cause  was  tried  at  the  last  December  term  of  that  court,  a  verdict 
rendered  for  the  plaintiff  on  both  issues,  and  his  damages  assessed  at 
three  hundred  dollars. 

After  the  plaintiff  had  rested,  the  defendants'  counsel  moved  for  a 
nonsuit,  upon  the  ground  that  there  was  not  sufficient  evidence  of  a 
wrongful  taking  to  sustain  the  action.  The  motion  was  overruled, 
with  permission  however  to  the  defendants  to  obtain  the  advisory  opin- 
ion of  this  court  upon  the  question.  Whereupon  the  case  was  certified, 
according  to  the  statute. 

Whitehead,  J.  The  case  shows  the  following  state  of  facts:  The 
plaintiff  and  one  John  Buckley  were  originally  the  joint  owners  of  the 
machinery  in  question;  and  on  the  dissolution  of  the  co-partnership 
between  them  in  October,  1836,  the  plaintiff  sold  and  assigned  all  his 
right  and  interest  therein  to  Buckley,  who  thereby  became  the  sole 
owner  thereof.  In  the  spring  of  1837,  Buckley  rented  a  building  of 
the  defendants  in  the  township  of  Lodi,  in  the  then  county  of  Bergen, 
and  removed  the  machinery  into  it.  He  was  engaged  for  some  time 
in  manufacturing  goods  for  the  defendants  at  a  given  sum  per  yard, 
they  finding  the  stock,  and  he  furnishing  the  labor  and  machinery. 
The  defendants  soon  after  this  arrangement  became  insolvent,  and 
failing  to  fulfil  their  part  of  the  contract  in  furnishing  the  materials, 
the  parties  made  another  arrangement,  by  which  "  the  defendants 
were  to  work  the  machinery,  part  of  the  time  towards  the  rent  of 
the  building,  and  Buckley  to  do  any  country  work  that  might  of- 
fer." He  stopped  manufacturing  in  the  summer  of  1837,  but  retained 
the  key  of  the  building  and  had  the  control  of  the  machinery  until 
November  or  Deceml)er  of  that  year,  and  until  the  same  was  demanded 
by  <he  plaintiff  as  liercinafter  mentioned. 

On  the  Uli  of  November,  1837,  Buckley  being  indebted  to  the  plain- 


CHAP.   XIII.]  TRESPASS.  483 

tiff,  executed  to  him  a  bill  of  sale  of  the  machinery,  at  which  time, 
he  says,  he  considered  himself  in  the  possession  of  it.  One  or  two 
weeks  after  this,  the  plaintiff  went  to  the  factory  of  the  defendants 
in  company  with  Buckley,  and  demanded  the  machinery  of  Rushforth. 
The  plaintiff  said  "  1  have  come  after  the  machinery  "  and  exhiljited 
to  him  the  bill  of  sale.  Eushforth  refused  to  deliver  it,  saying,  it 
should  not  go  out  of  the  factory  until  they  got  others  in  the  place  of 
it.  Buckley  was  present  and  consented  that  the  plaintiff  should  take 
it. 

Under  this  state  of  facts,  the  defendants  insisted,  that  the  goods 
had  not  been  tortiously  taken,  and  consequently  that  replevin  would 
not  lie.  Whether  tortiously  taken  or  not,  depends  in  some  measure 
upon  the  possession  of  the  goods  by  Buckley  at  the  time  of  the  execu- 
tion of  the  bill  of  sale. 

It  is  manifest  from  the  evidence,  that  Buckley,  at  the  time  of  the 
execution  of  the  bill  of  sale  to  the  plaintiff,  was  the  absolute  owner 
of  the  machinery;  and  if  not  in  the  actual  possession  thereof,  he  was 
so  constructively.  He  considered  himself  in  the  possession  of  it.  It 
was  in  a  building  he  had  rented  of  the  defendants,  the  key  of  which 
he  retained.  By  the  last  arrangement  between  the  parties,  after  the 
defendants  had  failed  in  the  business,  the  defendants  were  only  per- 
mitted to  use  the  machinery  when  Buckley  had  no  use  for  it.  There 
was  nothing  in  this  arrangement  which  gave  to  the  defendants  any 
right  or  power  over  it,  affecting  Buckley's  right  to  use,  sell  or  deliver 
it.  When  the  plaintiff  exhibited  his  bill  of  sale,  and  demanded  the 
machinery,  the  defendants  did  not  question  his  right  of  property,  nor 
did  they  assert  any  right  to  the  possession.  They  refused  to  suffer 
it  to  be  removed,  until  its  place  was  supplied  by  other  machinery, 
thereby  placing  their  refusal,  not  upon  a  claim  of  right,  but  upon  the 
ground  of  inconvenience  to  themselves. 

Under  this  evidence,  it  appears  to  me,  Buckley  must  be  considered, 
at  the  time  of  the  execution  of  the  bill  of  sale,  as  having,  beyond  all 
question,  the  constructive  possession  of  the  machinery ;  and  by  the 
bill  of  sale,  the  plaintiff  succeeded  to  all  his  rights,  both  of  property 
and  possession. 

Now  it  has  been  repeatedly  ruled,  that  a  general  property  in  goods, 
with  the  constructive  possession  thereof,  that  is  to  say,  a  right  to  re- 
duce them  to  possession  at  pleasure,  is  sufficient  to  maintain  either 
trespass  or  replevin. 

The  case  of  Dunham  v.  Wyckoff,  3  Wend.  280,  came  before  the  court 
upon  a  demurrer  to  the  avowry  of  the  defendant,  in  which  he  avowed 
the  taking  of  the  goods  in  question,  as  sheriff,  by  virtue  of  a  writ  of 
execution  against  one  Griswold,  as  the  goods  and  chattels  of  Griswold, 
the  same  being  in  the  possession  of  Griswold.  The  pleadings  ad- 
mitted, that  at  the  time  of  the  takinsr,  the  property  was  in  the  plaintiff, 
and  the  possession  in  Griswold,  the  defendant  in  execution.    The  ques- 


484  HAYTHORN   V.   RUSHFORTH.  [CHAP.    XIII. 

tion  was,  whether  replevin  would  lie.  The  court  say,  "  replevin  lies 
where  trespass  de  bonis  asportatis  will  lie.  The  plaintiff  must  have 
property  general  or  special,  and  possession  either  actual  or  construct- 
ive. The  plaintiff  having  the  property  in  the  goods  in  question,  had 
the  constructive  possession;  for  the  property  draws  to  it  the  posses- 
sion. The  plaintiff  therefore  had  the  right  to  take  possession  at  pleas- 
ure, and  could  have  sustained  trespass:  and  replevin  and  trespass  in 
such  cases  are  concurrent  remedies." 

The  plaintiff  then  being  the  absolute  owner,  and  in  the  construc- 
tive possession  of  the  machinery;  did  the  conduct  of  the  defendants, 
at  the  time  the  demand  was  made,  amount  in  law  to  a  tortious  taking 
thereof  or  was  it  such  an  interference  with  the  property,  as  would 
entitle  the  plaintiff  to  maintain  an  action  of  trespass  against  them  ? 

The  evidence  is,  that  when  the  plaintiff  exhibited  his  bill  of  sale 
and  demanded  the  machinery,  the  defendant  Eushforth  refused  to  de- 
liver it,  saying,  it  should  not  go  out  of  the  factory  until  they  got 
others  in  the  place  of  it.  Here  was  an  unlawful  intermeddling  with 
the  property;  an  exercise,  or  claim  of  dominion  over  it,  without  any 
pretence  of  authority  or  right.  This  without  a  manual  seizing  of  the 
property  is  sufficient  in  law,  to  constitute  a  tortious  taking;  7  Cowen 
Eep.  735  ;i  10  Wend.  R.  349  ;2  23  Wend.  R.  462 ;  ^  15  Wend.  R. 
631 ;  *  and  consequently  renders  them  liable  to  an  action  of  trespass  or 
replevin. 

It  is  not  necessary  to  the  decision  of  the  question  in  this  cause,  to 
express  an  opinion  upon  another  point  raised  by  the  plaintiff's  coun- 
sel, whether  the  action  of  replevin  in  this  state  may  not  be  sustained 
for  a  wrongful  detention,  when  the  taking  was  not  tortious. 

The  Supreme  Court  of  Massachusetts  hold,  that  the  action  lies 
for  goods  unlawfully  detained  though  there  was  no  tortious  taking. 
15  Mass.  Rep.  284;^  16  Mass.  Rep.  147.''  In  the  last  case  Putnam, 
judge,  is  of  opinion,  that  one  may  be  considered  constructively  taking 
goods,  who  came  lawfully  into  possession,  but  keeps  them  from  the 
owner  against  right.  Chief  Justice  Savage,  in  reference  to  these  de- 
cisions, remarks  in  Marshall  v.  Davies,  1  Wend.  109,  "were  the  ques- 
tion new  in  this  court,  I  should  be  strongly  inclined  to  hold  the  doc- 
trine of  the  Massachusetts  Court  correct." 

There  is  a  strong  disposition  in  courts  to  favor  this  action,  as  it 
furnishes  a  more  adequate  remedy  than  trespass  or  trover ;  and  not  un- 
frequently  it  is  the  only  effectual  remedy  for  the  party  injured.  In 
the  language  of  the  late  Chief  Justice  Ewing,  6  Halst.  374/  "  the 


*  VVIntrlnghHm  v.   I^afoy. 

*  Allen   V.   ("riiry. 

*  Connah   r.    Ilalp. 

*  P'onfiii   1'.    Van    Home. 

» HadKcr  r.    I'lilnncy,    l.")   Mass.   359. 

•Haker  v.  FaloH. 

»Bruen  t'.  OKden,  0  Ilalst.  .370. 


CHAP.    XIII.]  TRESPASS.  485 

remedy  by  replevin  is  prompt,  efficacious  and  beneficial,  and  the  use 
of  it  on  proper  occasions  should  be  rather  fostered  than  repressed." 
Elmer,  J.,  delivered  a  concurring  opinion. 

The  Circuit  Court  advised  to  give  judgment  for  the  plaintiff. 


CAMPBELL  V.  AENOLD. 

Supreme  Court  of  New  York,  August,  1806.     1  Johns.  R.  511. 

This  was  an  action  of  trespass  quare  clausum  fregit.  The  cause 
was  tried  at  the  Washington  circuit,  the  11th  June,  1806.  On  the 
trial  the  plaintiff  proved,  that  in  the  year  1776,  he  was  in  the  actual 
possession  of  the  premises  on  which  the  trespass  was  committed;  that 
the  defendant  entered  on  the  land  in  question,  and  cut  down,  took 
and  carried  away  thirteen  pine  trees ;  that  at  the  time  of  the  trespass, 
one  Archibald  was  in  possession  of  the  land,  as  a  tenant  under  the 
plaintiff,  to  whose  agent  he  paid  rent.  The  counsel  for  the  defendant 
moved  for  a  nonsuit,  on  the  ground,  that,  as  the  plaintiff  was  not  in 
the  actual  possession  of  the  premises,  which  were  in  the  occupation  of 
his  tenant  at  the  time  the  trespass  was  committed,  he  could  not  main- 
tain the  present  action.  The  objection  was  overruled  by  the  judge, 
and  the  jury  found  a  verdict  for  the  plaintiff. 

A  motion  was  now  made  to  set  aside  the  verdict  for  the  misdirection 
of  the  judge. 

Per  Curiam.  The  rule  appears  to  have  been  long  and  well  estab- 
lished, that  there  must  be  a  possession  in  fact  of  the  real  property  to 
which  the  injury  was  done,  in  order  to  entitle  a  party  to  maintain  an 
action  of  trespass  quare  clausum  fregit.  A  general  property,  in  the 
case  of  real  estate,  is  not,  as  in  the  case  of  personal,  sufficient  to  sup- 
port this  action.  Admitting  the  fee  of  the  land  to  be  in  the  plaintiff, 
his  remedy  for  an  injury  to  the  freehold  must  be  either  against  his 
tenant,  or  against  the  defendant,  in  a  different  form  of  action.  3 
Wooddeson,  193,  194.  3  Lev.  209.  6  Bac.  Abr.  566,  new  edit,  and 
cases  there  cited.  The  verdict  must,  therefore,  be  set  aside,  and  a 
new  trial  granted,  with  costs  to  abide  the  event  of  the  suit. 

New  trial  granted. 


TOBEY  V.  WEBSTEE. 

Supreme  Court  of  New  York,  November,  1808.     3  Johns.  R.  468. 

This  was  an  action  of  trespass  quare  clausum  fregit,  and  for  taking 
and  carrying  away  a  house.  The  cause  was  tried  at  the  Greene  circuit, 
in  June,  1805,  before  Mr.  Justice  Thompson. 


486  TOBEY    V.    WEBSTER.  [CHAP.   XIII. 

The  premises  on  which  the  trespass  was  alleged  to  have  been  com- 
mitted were  leased  on  the  17th  November,  1802,  by  the  plaintiff,  to  one 
Barber,  for  two  years.  On  the  26th  July,  1803,  Barber  gave  a  writing 
to  the  defendant,  granting  him  permission  to  occupy  and  improve 
the  premises,  as  long  as  the  defendant  should  remain  in  his  (Barber's) 
employ,  and  to  build  an  addition  to  the  house  of  14  feet  square,  and 
keep  his  cattle  in  the  barn  on  the  premises,  free  of  rent.  On  the  19th 
November,  1803,  Barber  assigned  his  lease  to  one  Coffin,  who  reas- 
signed it  to  the  plaintiff,  on  the  27th  February,  1804.  The  house  in 
question  was  erected  by  the  defendant,  with  materials  cut  on  the 
premises,  and  was  taken  away  on  the  16th  February,  1804,  before  the 
reassignment  of  the  lease  to  the  plaintiff.  The  lease  gave  a  permis- 
sion to  cut  timber  on  the  land,  for  the  use  of  the  mill.  The  defend- 
ant was  a  sawyer  employed  on  the  premises;  and  was  employed  by 
Coffin,  after  the  assignment  of  the  lease  to  him  by  Barber. 

A  verdict  was  taken  for  the  plaintiff,  subject  to  the  opinion  of  the 
court,  on  a  case  containing  the  above  facts. 

E.  Williams,  for  the  plaintiff.  I  shall  contend  that  a  reversioner 
may  maintain  trespass  for  any  injury  done  to  the  freehold,  during 
the  possession  of  the  termor;  and  that  where  things  are  severed  from 
the  freehold  and  carried  away,  an  action  will  lie,  de  bonis  asportatis. 

Spencer,  J.  It  was  expressly  decided  in  the  case  of  Campbell  v. 
Arnold,  1  Johns.  Eep.  511,^  that  trespass  would  not  lie  by  the  lessor 
or  owner  of  the  land,  while  there  was  a  tenant  in  possession. 

Kent,  Ch.  J.  I  was  at  first  of  a  different  opinion,  but  on  looking 
into  the  cases,  I  was  satisfied  that  the  plaintiff  could  not  maintain 
an  action  of  trespass,  and  concurred  with  the  other  judge  in  the  opin- 
ion delivered.    It  is  unnecessary  to  argue  that  point. 

Williams.  Then  I  shall  endeavor  to  distinguish  this  case  from 
that  of  Campbell  v.  Arnold.  Here  the  plaintiff  was  restored  to  his 
possession.  A  disseisee  may  maintain  trespass  after  a  reentry,  for  any 
intermediate  damage  done  to  the  freehold,  for  by  his  reentry  he  is 
restored  to  his  possession,  ab  initio.  3  Bl.  Comm.  210.  Viner,  Tres- 
pass, T.  5,  6,  7,  ib.  N.  3,  4.  The  defendant  derived  no  interest  in  the 
premises  from  the  plaintiff.  He  was  a  mere  tenant  at  will  to  Barber. 
He  had  permission  to  build  a  house  and  occupy  it,  free  of  rent;  but 
he  had  no  authority  to  take  it  away.  The  fair  inference  from  the 
writing  given  to  him  by  Barl)er,  is,  that  lie  was  to  leave  the  house  on 
the  premises.  If  such  be  the  true  interpretation  of  the  agreement, 
then  the  defendant  had  no  right  to  remove  the  house.  1  Hen.  Black. 
259,  Barber  clearly  had  no  right  to  build  or  remove  any  building,  and 
could  not,  therefore,  give  any  such  right  to  the  defendant.  Again, 
when  the  house  was  pulled  down,  and  severed  from  the  land,  the  ma- 
terials belonged  to  the  plaintiff.  Though  a  lessee  for  years  may  have 
an  action  of  trespass  against  a  stranger  for  cutting  down  trees;  yet 

>  Ante,  p.  4 Ho. 


CHAP.    XIII.]  TRESPASS.  487 

he  cannot  recover  the  value  of  the  trees,  for  they  are  the  property  of 
the  reversioner.  4  Co.  62,  63,  Co.  Litt.  57,  a.  The  materials  of 
which  the  house  was  built  did  not  belong  to  the  defendant,  and  he  had 
no  right  to  take  them  away.  The  pulling  down  of  the  house  was 
waste,  and  an  injury  to  the  freehold.  The  defendant  was  a  tort- 
feasor, a  wrong  doer,  and  the  proper  remedy  against  him  is  trespass, 
and  not  trespass  on  the  case.  Though  the  lessee  may  have  trespass 
against  a  man  who  subverts  the  land,  the  lessor  also  may  have  trespass 
for  the  destruction  committed.  Viner,  Trespass,  N.  3,  4,  Cro.  Car. 
187.  There  is  no  distinction  in  this  respect  between  a  tenant  at  will, 
and  a  tenant  for  years.  Again,  the  house  was  a  fixture,  and  so  an- 
nexed to  the  freehold  that  the  defendant  could  not  remove  it.  3  East, 
38. 

Frazier,  contra.  It  has  been  settled  that  no  person  out  of  posses- 
sion, not  even  the  heir  at  law,  can  maintain  trespass  quare  clausum 
fregit.  6  Bac.  Abr.  566.  The  doctrine  cited  from  Viner  does  not 
apply  to  this  case,  for  as  the  plaintiff  was  not  in  possession,  there 
cannot  be  a  disseisin.  The  proper  remedy  for  the  plaintiff  is  an  ac- 
tion on  the  case  in  the  nature  of  waste.  Barber  had  a  right  to  cut 
trees  for  the  use  of  the  mill ;  and  the  defendant  had  permission  to  take 
the  timber  sawed  at  the  mill,  and  to  build  the  house.  Having  erected 
the  house  of  his  own  materials,  he  had  a  right  to  remove  it  during  the 
term,  if  he  could  do  it  without  injury  to  the  freehold.  Bull.  N".  P. 
34.  1  H.  Black.  256.  Lawton  v.  Salmon,  in  notes.  There  has  been 
no  destruction  or  waste  committed,  but  the  premises  are  left  in  the 
same  situation  in  which  they  were  at  the  time  the  lease  was  given  to 
Barber.  The  defendant  cannot  be  considered  as  a  tenant  at  will;  he 
was  rather  a  servant  or  agent  under  Barber,  who  was  a  lessee  for 
years. 

Yates,  J.,  delivered  the  opinion  of  the  court.  An  action  of  tres- 
pass may  be  maintained  by  a  landlord  against  a  tenant  at  will,  for 
waste,  because  the  injury  determines  the  estate,  and  the  possession  con- 
sidered as  thereby  actually  in  the  landlord.  The  defendant  here  is 
an  under  tenant  of  a  tenant  for  years;  and  the  alleged  trespass  was 
committed  before  the  expiration  of  the  term.  The  instrument  by 
which  the  defendant  possessed  the  premises  made  him  a  tenant  at  the 
will  of  the  lessee  for  years,  and  not  at  the  will  of  the  original  lessor; 
and  if  the  lessee  for  years,  his  agents,  or  sub-tenants,  did  an  injury  to 
the  freehold,  the  lessor  might  have  his  remedy  against  him  or  the 
person  in  default,  in  another  form  of  action.  The  assignment  or  sur- 
render of  this  lease  to  the  original  lessor,  before  the  expiration  of  the 
term,  does  not  give  him  a  right  to  sustain  this  action.  I  should  rather 
suppose  that,  by  the  assignment,  having  accepted  the  premises  in  the 
state  and  condition  they  were  at  the  time  of  surrender,  he  has  waived 
all  claim  for  injuries  previously  done  to  the  freehold.  But  it  is  con- 
tended that  this  assignment  and  reentry  restores  the  possession  ab 


488  CUTTS    V.   SPRING.  [CHAP.    XIU. 

initio,  and  gives  him  a  right  of  action.  This  doctrine  only  applies  in 
a  case  of  disseisin.  The  reentry  in  such  case  reduces  the  possession 
from  the  time  of  the  first  disseisin,  and  an  action  of  trespass  may 
be  sustained;  but  here  the  possession  of  the  defendant  was  lawful, 
founded  on  the  original  lease,  and  no  disseisin  is  pretended.  I  cannot, 
therefore,  distinguish  this  case  from  that  of  Campbell  v.  Arnold,  where 
the  court  considered  the  rule  as  established,  that  there  must  be  a  pos- 
session in  fact  of  the  real  property,  to  which  the  injury  was  done,  in 
order  to  entitle  the  party  to  an  action  of  trespass  quare  clausum  fregit. 

The  court  are,  therefore,  of  opinion  that  the  verdict  ought  to  be 
set  aside,  and  that  a  judgment  of  nonsuit  be  entered. 

Van  Ness,  J.,  having  formerly  been  concerned  as  counsel  in  the 


cause,  declined  giving  any  opinion. 


Judgment  of  nonsuit. 


CUTTS  V.  SPEING. 

Supreme  Court  of  Massachusetts,  May,  1818.     15  Mass.  135. 

Trespass  quare  clausum  fregit,  and  for  cutting  timber  on  a  tract 
of  land  in  Hiram,  in  the  county  of  Oxford.  On  the  general  issue 
joined,  trial  was  had  at  the  last  October  term,  before  Thatcher,  J. 
The  plaintiffs  proved  the  cutting  of  the  trees  on  the  land  described, 
their  title  to  which  they  derived  as  follows:  In  1771  the  government 
of  this  then  province  granted  to  one  Benjamin  Prescott  a  certain  tract 
of  land,  which  he  caused  to  be  surveyed  and  upon  which  he  entered. 
In  1809  his  son,  Henry  P.,  conveyed  the  south-easterly  half  thereof 
to  the  plaintiffs,  who  entered,  and  became  seised  and  possessed  thereof, 
including  the  locus  in  quo. 

The  defendants  offered  to  prove  that,  since  the  trespass  was  com- 
mitted, the  Commonwealth  had  recovered  judgment  upon  an  inquest 
of  office  against  the  plaintiffs,  upon  the  ground  that  they,  as  assignees 
of  said  Benjamin,  held  and  claimed  more  lands  than  they  were  en- 
titled to  hold  under  the  said  grant ;  and  that  commissioners,  appointed 
pursuant  to  law,  had  assigned  to  the  plaintiffs  a  tract  of  land,  being 
part  of  what  they  claimed  to  hold,  but  not  including  the  locus  in  quo. 
The  judge  refused  to  admit  this  evidence;  and  a  verdict  was  returned 
for  the  plaintiffs,  which  was  to  be  set  aside  and  a  new  trial  had,  if 
the  said  evidence  ought  to  have  l)een  admitted. 

By  the  Court.  The  grant  of  the  government  to  B.  Prescott  in 
1771,  and  his  surveying,  fixing  the  bounds,  and  entering  upon  the 
land,  gave  him  a  seisin,  although  he  included  more  land  within  his 
location  than  his  grant  conveyed  to  him.  Tlis  title  descended,  with 
the  possession,  to  his  son,  and  the  deed  of  this  latter  conveyed  the 
seisin  to  tlic  plaintiffs  in  1809. 

It  is  wliolly  iniinaterial  to  the  defendants  whetlier  the  location  cov- 


I 


CHAP.    XIII.]  TRESPASS.  489 

ered  more  land  than  the  terms  of  the  grant  would  warrant.  The 
plaintiffs  were  seised  as  well  as  possessed,  in  regard  to  every  one  but 
the  Commonwealth,  who  might,  or  might  not,  reclaim  part  of  the  land 
located,  as  not  conveyed. 

The  action,  therefore,  is  rightly  brought,  and  the  value  of  the  trees 
is  the  proper  measure  of  the  damages.  For  the  Commonwealth  has  a 
right  to  call  the  plaintiffs  to  account,  by  a  suit  for  the  mesne  profits, 
or  in  some  other  way;  and  as  the  defendants  were  wrongdoers  to  the 
plaintiffs,  these  latter  ought  to  be  in  possession  of  the  value  of  the 
trees,  as  a  fund  to  meet  the  claim  of  the  Commonwealth.  If  not 
called  upon,  they  have  a  right  to  keep  the  money  for  their  own  use, 
being  accountable  to  none  but  the  Commonwealth. 

Judgment  on  the  verdict. 


MUREAY  V.  HALL. 

Common  Pleas  of  England,  Hilary  Vacation,  1849.     7  C.  B.  441. 

This  was  an  action  of  trespass  for  breaking  and  entering  the  dwell- 
ing-house of  the  plaintiffs,  and  expelling  them  therefrom,  and  seizing 
and  converting  their  goods. 

The  defendant  pleaded,  first,  not  guilty;  secondly,  as  to  the  breaking 
and  entering  the  dwelling-house,  leave  and  license;  thirdly,  that  the 
premises  were  not  the  premises  of  the  plaintiffs;  fourthly,  as  to  the 
goods,  leave  and  license;  fifthly,  that  the  goods  were  not  the  goods  of 
the  plaintiffs :  upon  which  issue  was  joined. 

The  cause  was  tried  before  Maule,  J.,  at  the  sittings  at  Westminster, 
in  Easter  Term,  18-i7.  The  facts  appearing  in  evidence  were  as  fol- 
lows: The  three  plaintiffs  and  one  Hart  had  jointly  become  tenants 
of  the  premises  in  question  —  a  room  used  as  a  coffee-room  by  the 
members  of  a  temperance  society  —  to  one  Hall.  On  the  23d  of  No- 
vember, 1846,  the  defendant  and  Hart  forcibly  expelled  from  the 
premises  a  person  named  Adams,  who  had  been  placed  there  by  Mur- 
ray. 

On  the  part  of  the  defendant  it  was  proved  that  Hart,  on  the  5th 
of  November,  1846,  surrendered  his  interest  to  the  defendant  by  a 
document  of  which  the  following  is  a  copy :  — 

"  Mr.  W.  Hall. 

"  Sir,  —  The  premises  I  and  my  copartners  hold  of  you,  being  sit- 
uated No.  11  Stacey  Street,  St.  Giles's,  I,  in  the  name  of  the  same, 
give  up,  as  we  cannot  pay  you  the  rent  due,  my  cop«^T*tners  having  mis- 
applied the  same. 

"  Yours,  &c., 

"  John  Hart. 
"  P.  S.  —  I  have  given  the  key  to  Mr.  G.  for  you." 


490  MURRAY   V.    HALL.  [CHAP.    XIII. 

It  was  then  insisted  for  the  defendant  that  the  surrender  by  Hart 
at  all  events  inured  as  a  surrender  of  his  own  interest,  and  made  Hall 
tenant  in  common  with  the  three  plaintiffs;  and  that  one  tenant  in 
common  could  not  maintain  trespass  against  his  companion,  even  for 
an  actual  expulsion.  Cubitt  v.  Porter,  8  B.  &  C.  257 ;  2  Mann.  &  K. 
627.  And  see  Wiltshire  v.  Sidford,  1  Mann.  &  E.  403.  On  the  part 
of  the  plaintiffs  it  was  objected  that,  since  the  new  rules,  a  surrender 
must  be  pleaded  specially.  The  learned  judge  told  the  jury  that,  if 
the  evidence  satisfied  them  that  there  had  been  an  actual  expulsion  of 
the  plaintiffs  from  the  premises  by  the  defendant,  their  verdict  ought 
to  be  for  the  plaintiffs.  The  jury  returned  a  verdict  for  the  plaintiffs ; 
damages  £35.    Eule  nisi  to  enter  nonsuit. 

CoLTMAN,  J.  This  was  an  action  for  breaking  and  entering  the 
plaintiffs'  dwelling-house,  and  expelling  them  therefrom,  to  which  the 
defendant  pleaded,  first,  not  guilty;  secondly,  leave  and  license; 
thirdly,  a  denial  that  the  dwelling-house  was  the  plaintiffs'. 

At  the  trial  before  Maule,  J.,  one  ground  of  defence  was  that  the 
defendant  was  tenant  in  common  of  the  house  with  the  plaintiffs,  and 
that  therefore  the  action  was  not  maintainable.  The  learned  judge 
told  the  jury  that,  if  the  evidence  satisfied  them  that  there  had  been  an 
actual  expulsion  of  the  plaintiffs  from  the  house  by  the  defendant, 
their  verdict  ought  to  be  for  the  plaintiffs.  The  jury  found  for  the 
plaintiffs;  damages  £35. 

The  defendant  afterwards  obtained  a  rule  to  show  cause  why  a  non- 
suit should  not  be  entered  (pursuant  to  leave  given  at  the  trial),  on 
the  ground  that  one  tenant  in  common  cannot  maintain  trespass 
against  another,  even  though  there  has  been  an  actual  expulsion. 

On  showing  cause,  it  was  argued  (before  the  Lord  Chief  Justice, 
and  Justices  Coltman,  Cresswell,  and  V.  Williams)  that  this  de- 
fence, even  if  sustainable,  ought  to  have  been  specially  pleaded.  It  is 
unnecessary  to  give  any  opinion  on  this  point,  for  we  are  of  opinion 
that  the  defence  is  not  sustainable. 

Tlie  court  has  felt  some  difficulty  on  the  question,  by  reason  only 
of  the  doubts  expressed  by  Littledale,  J.,  in  his  judgment  in  Cubitt  v. 
Porter,  8  B,  &  C.  269.  That  learned  judge  there  said,  that  although 
if  there  has  been  actual  ouster  by  one  tenant  in  common,  ejectment 
will  lie  at  the  suit  of  the  other,  yet  he  was  not  aware  that  trespass 
would  lie;  for  that  in  trespass  the  breaking  and  entering  is  the  gist 
of  the  action,  and  the  expulsion  or  ouster  is  a  mere  aggravation  of 
the  trespass;  and  that,  therefore,  if  the  original  trespass  be  lawful, 
trespass  will  not  lie.  It  appears,  however,  to  us  difficult  to  understand 
why  trespass  should  not  lie,  if  ejectment  (which  includes  trespass) 
may  be  maintained  (as  it  confessedly  may)  on  an  actnal  ouster.  And, 
as  it  has  been  further  established,  in  the  case  of  Goodtitle  v.  Tombs, 
3  Wils.  118,  that  a  tenant  in  common  may  miiintain  an  action  of  tres- 


CHAP.    XIII.]  TRESPASS.  491 

pass  for  mesne  profits  against  liis  companion,  it  appears  to  us  tliat 
there  is  no  real  foundation  for  tlie  dovibts  suggested. 

We  are,  therefore,  of  opinion  that  the  direction  of  Maule,  J.,  at 
the  trial,  was  right;  and  consequently  this  rule  must  be  discharged. 

Rule  discharged. 


NEWKIRK  V.  SABLER. 

Supreme  Court  of  New  York,  December,  1850.    9  Barbour,  652. 

This  was  an  action  for  an  assault  and  battery,  tried  before  Justice 
Wright,  at  the  Ulster  circuit  in  June,  1849.  It  appeared  that  the 
plaintiff  had  sent  his  servant,  with  a  team  and  wagon,  across  the  farm 
of  the  defendant,  upon  which  he  entered  by  taking  down  the  bars, 
to  the  house  of  one  Roosa,  after  the  defendant  had  forbidden  the 
plaintiff's  crossing  his  lands.  On  the  return  of  the  team  to  the  place 
where  it  had  entered,  the  bars  were  found  fastened,  by  boards  nailed 
over  them.  The  servant,  after  an  ineffectual  attempt  to  get  through, 
left  the  team  and  wagon  on  the  defendant's  land,  and  went  and  in- 
formed the  plaintiff,  who  came  and  commenced  tearing  down  the 
fence  for  the  purpose  of  taking  away  his  property.  The  defendant 
forbade  the  plaintift''s  taking  down  the  fence,  but  the  latter  persisting 
in  his  attempt,  the  defendant  struck  the  plaintiff,  or  struck  at  liim^ 
with  a  stick.  A  fight  ensued  between  the  parties,  in  which  the  plaintiff 
received  the  injuries  complained  of;  and  both  parties  were  more  or 
less  injured.  The  result  was,  that  the  plaintiff  got  the  fence  down, 
and  brought  away  his  team. 

The  judge  charged  the  jury,  among  other  things,  that  although  the 
team  and  wagon  of  the  plaintiff  were  wrongfully  on  the  land  of  the 
defendant,  it  was  the  duty  and  right  of  the  plaintiff  to  get  them  off, 
with  the  least  possible  injury  to  the  premises;  and  that  the  defendant 
was  not  justified  in  using  personal  violence  to  prevent  him  from  re- 
moving his  team  from  the  premises.  That  the  real  question  for  them 
to  determine  was,  whether  the  plaintiff  was,  at  the  time  of  fbe  as- 
sault, engaged  in  wanton  and  unnecessary  destruction  of  the  defend- 
ant's fences ;  or  whether  he  was  endeavoring,  in  the  most  direct  way,  to 
remove  his  team  from  the  premises;  that  if  the  jury  should  be  satis- 
fied from  the  evidence,  that  the  force  employed  by  the  defendant  was 
exerted  for  the  purpose  of  preventing  the  plaintiff  from  removing  his 
team  from  the  premises,  and  not  to  preserve  his  fence  from  unneces- 
sary injury,  then  they  ought  to  find  for  the  plaintiff.  But  on  the  con- 
trary, if  they  should  find  that  the  injury  the  plaintiff  was  doing  to  the 
fence  was  unnecessary,  and  that  the  defendant  committed  the  acts 
complained  of,  for  the  purpose  of  preventing  such  unnecessary  injury 
to  the  fence,  then  the  verdict  should  be  for  the  defendant.  The  coun- 
sel for  the  defendant  excepted  to  so  much  of  the  charge,  as  charged 


492  NEWKIRK   V.    SABLEE.  [CHAP.    XIII. 

that  it  was  the  duty  of  the  plaintiff,  and  that  he  had  a  right,  though 
his  horses  and  wagon  were  upon  the  lands  of  the  defendant,  to  re- 
move them  therefrom;  and  that  the  plaintiff  was  justifiable  in  break- 
ing down  the  fence  to  remove  them,  if  it  was  necessary  to  do  so  for 
that  purpose ;  and  that  the  defendant  would  not  be  justifiable  in  com- 
mitting a  battery  to  prevent  him  from  so  doing;  and  to  so  much  of 
the  charge  as  submitted  to  the  jury  the  question  which,  in  the  opinion 
of  the  judge,  was  the  real  question  for  them  to  try. 

The  jury  found  a  verdict  for  $50  in  favor  of  the  plaintiff.  From 
the  judgment  entered  on  this  verdict,  the  defendant  appealed. 

Paeker,  J.  I  think  the  learned  justice  erred  in  holding  that  the 
plaintiff  had  a  right  to  enter  upon  the  lands  of  the  defendant  for  the 
purpose  of  regaining  possession  of  his  property. 

The  right  to  land  is  exclusive;  and  every  entry  thereon,  without  the 
owner's  leave,  or  the  license  or  authority  of  law,  is  a  trespass.  3  Bl. 
Com.  209.  18  John.  385.  There  is  a  variety  of  cases  where  an  au- 
thority to  enter  is  given  by  law;  as  to  execute  legal  process;  to  dis- 
train for  rent ;  to  a  landlord  or  reversioner,  to  see  that  his  tenant  does 
no  waste,  and  keeps  the  premises  in  repair  according  to  his  covenant 
or  promise;  to  a  creditor,  to  demand  money  payable  there;  or  to  a 
person  entering  an  inn  for  the  purpose  of  getting  refreshment  there. 
3  Black.  Com.  213.  1  Cowen's  Tr.  411.  In  some  cases,  a  license  will 
be  implied;  as  if  a  man  make  a  lease,  reserving  the  trees,  he  has  a 
right  to  enter  and  show  them  to  the  purchaser.  10  Co.  46.  Where 
the  owner  of  the  soil  sells  the  chattel  being  on  his  land.  As  if  he 
sells  a  tree,  a  crop,  a  horse,  or  a  fanning  mill,  which  remain  within 
his  close ;  he  at  the  same  time  passes  to  the  vendee,  as  incident  to  such 
sale,  a  right  to  go  upon  the  premises  and  take  away  the  subject  of  his 
purchase,  without  being  adjudged  a  trespasser.  1  Cowen's  Tr,  367. 
Bac.  Abr.  Trespass  F.  11  East.  366.  2  Roll.  Abr.  567  m.  n.  1.  And 
if  a  man,  in  virtue  of  his  license,  erects  a  building  on  another's  land, 
this  license  cannot  be  revoked  so  entirely  as  to  make  the  person  who 
erected  it  a  trespasser,  for  entering  and  removing  it  after  the  revoca- 
tion. In  some  cases,  the  motive  will  excuse  the  entry.  If  J.  S.  go 
into  the  close  of  J.  N.  to  succor  the  beast  of  J.  N.,  the  life  of  which 
is  in  danger,  an  action  of  trespass  will  not  lie;  because,  as  the  loss 
of  J.  N.,  if  tlie  beast  had  died,  would  have  been  irremediable,  the  do- 
ing of  this  is  lawful.  But  if  J.  S.  go  into  the  close  of  J.  N.  to  prevent 
the  beast  of  J.  N.  from  being  stolen,  or  to  prevent  his  corn  from  being 
consumed  by  hogs,  or  spoiled,  the  action  of  trespass  lies ;  for  the  loss, 
if  either  of  those  things  had  happened,  would  not  have  been  irremedi- 
able. Bac.  A])r.  Trespass  F.  And  if  a  stranger  chase  the  beast  of  A. 
which  is  damage  feasant  therein,  out  of  the  close  of  B.,  trespass  will 
lie;  for  by  doing  this,  although  it  seem  to  be  for  his  benefit,  B  is  de- 
prived of  his  right  to  distrain  the  beast.  Bro.  Tresp.  pi.  421.  Keilw. 
46,  13. 


CHAP.    XIII,]  TRESPASS.  493 

In  some  cases  the  entry  will  be  excused  by  necessity.  As  if  a  pub- 
lic highway  is  impassable,  a  traveler  may  go  over  the  adjoining  land. 
2  Show.  28.  Lev.  234.  1  Ld.  Eaym.  725.  But  this  would  not  ex- 
tend to  a  private  way;  for  it  is  the  owner's  fault  if  he  do  not  keep  it 
in  repair.  Doug.  717.  1  Saund.  331.  So  if  a  man  who  is  assaulted, 
and  in  danger  of  his  life,  run  through  the  close  of  another,  trespass 
will  not  lie,  because  it  is  necessary  for  the  preservation  of  his  life. 
Year-Book,  37  H.  6,  37,  pi.  26.  If  my  tree  be  blown  down  and  fall 
on  the  land  of  my  neighbor,  I  may  go  on  and  take  it  away.  Bro. 
Tres.  pi.  213.  And  the  same  rule  prevails  where  fruit  falls  on  the  land 
of  another.  Miller  v.  Fawdry,  Latch,  120.  But  if  the  owner  of  a 
tree  cut  the  loppings  so  that  they  fall  on  another's  land,  he  cannot  be 
excused  for  entering  to  take  them  away,  on  the  ground  of  necessity, 
because  he  might  have  prevented  it.    Bac.  Abr.  Trespass  F. 


But  it  is  well  settled  that  where  there  is  neither  an  express  nor  an 
implied  license,  nor  any  such  legal  excuse  as  is  above  stated,  a  man 
has  no  right  to  enter  upon  the  land  of  another  for  the  purpose  of  tak- 
ing away  a  chattel  being  there,  which  belongs  to  the  former.  The 
mere  fact  that  the  plaintiff  owns  the  chattel,  gives  him  no  authority  to 
go  upon  the  land  of  another  to  get  it.  In  Heermance  v.  Vernoy,  6 
John.  Eep.  5,  where  A.  had  entered  upon  the  land  of  B.  without  his 
permission,  to  take  a  chattel  belonging  to  A. ;  it  was  held  to  be  a  tres- 
pass. So  in  Blake  v.  Jerome,  14  John.  406,  a  mare  and  colt  were 
taken  out  of  the  plaintiff's  field  by  a  person  who  acted  under  the  orders 
and  direction  of  the  defendant  after  they  had  been  demanded  by  the 
defendant  and  refused  to  be  delivered  to  him;  and  after  he  had  been 
expressly  forbidden  to  take  them;  and  the  defendant  was  held  to  be 
guilty  of  a  trespass. 

In  this  case,  the  plaintiff's  horses  and  wagon  were  on  the  lands  of 
the  defendant,  where  they  had  been  left  by  the  servant  of  the  plain- 
tiff. They  were  not  there  by  the  defendant's  permission.  On  the  con- 
trar3%  the  plaintiff  had  been  guilty  of  a  trespass  in  sending  his  team 
across  the  lands  of  the  defendant,  after  he  had  been  forbidden  to  do 
so.  And  I  think  the  defendant  had  the  right  to  detain  them,  before 
they  left  the  premises,  and  to  distrain  them  damage  feasant.  2  Eev, 
Stat.  427.  But  it  is  not  necessary  to  decide,  whether  the  defendant 
detained  the  property  rightfully  or  wrongfully. 

The  plaintiff  attempted  to  enter  upon  the  lands  of  the  defendant 
and  against  his  will,  for  the  purpose  of  taking  away  his  property. 
This  he  had  no  right  to  do,  even  though  his  property  were  unlawfully 
detained  there.  If  the  plaintiff  could  not  regain  the  possession  of  his 
property  peaceably,  he  shouk!  have  resorted  to  his  legal  remedy,  by 
which  he  could,  after  demand  and  refusal,  have  recovered  either  the 
property  itself  or  its  value.     He  had  no  right  to  redress  himself  by 


494  MCLEOD    V.    JONES.  [CHAP.    XIII. 

force.  1  Black.  Com.  4.  In  pursuing  his  object,  the  plaintiff  tore 
down  the  defendant's  fence  after  he  had  been  forbidden  to  enter,  and 
after  he  had  been  ordered  by  the  defendant  to  desist.  The  defendant 
had  a  right  to  protect  himself  in  the  enjoyment  of  his  possession  and 
his  property,  by  defending  them  against  such  aggression.  8  T.  E.  88, 
299.  1  Saund.  296,  note  1.  1  Salk.  641.  1  Bing.  158.  3  Black. 
Com.  5. 

The  defendant  cannot  be  held  liable  for  the  injuries  inflicted  upon 
the  plaintiff,  on  the  occasion  in  question,  unless  he  used  more  force 
than  was  necessary  for  the  defence  of  his  possession ;  and  it  seems 
he  did  not  use  enough  to  prevent  the  plaintiff's  effecting  his  forcible 
entry  and  taking  away  the  property.  But  that  was  a  question  proper 
to  be  submitted  to  the  jury. 

The  judgment  of  the  circuit  court  must  be  reversed,  and  a  new 
trial  awarded;  costs  to  abide  the  event. 

Reversed. 


McLEOD  V.  JONES. 

Supreme  Court  of  Massachusetts,  October,  1870.     105  Mass.  403. 

Tort  for  forcibly  entering  the  plaintiff's  close  in  Taunton,  and  re- 
moving and  converting  to  the  defendant's  use  household  furniture 
found  therein. 

At  the  trial  in  the  superior  court,  before  Pitman,  J.,  property  in 
and  possession  of  the  close  (which  was  the  upper  story  of  a  house)  by 
the  plaintiff  were  admitted;  and  the  plaintiff  introduced  evidence  to 
show  that  he  had  hired  and  occupied  the  premises  as  a  residence  and 
dwelling  for  himself  and  his  wife  and  two  children,  about  two  years, 
when  in  September,  1868,  he  took  them  on  a  visit  to  Fall  Eiver,  and 
he  himself  went  to  New  York  on  a  visit  to  his  father;  that  he  in- 
tended to  return  to  Taunton  in  about  four  weeks,  but  for  various 
reasons  changed  his  original  design  and  ceased  to  reside  in  Taunton; 
that  three  or  four  days  after  he  went  away,  "  leaving  his  furniture 
and  household  goods  in  the  same  state,  as  he  used  them  for  house- 
keeping purposes,  and  the  doors  of  his  tenement  locked,"  the  defend- 
ant went  to  the  house  with  a  key  that  would  fit  the  door,  unlocked 
and  entered  the  tenement,  and  took  and  carried  away  the  furniture. 

It  appeared  "  that  the  plaintiff,  while  living  in  Providence,  had 
given  to  the  defendant  a  bill  of  sale  of  a  part  or  the  whole  of  the 
articles  of  furniture,  and  had  subsequently  brought  them  with  him  to 
Taunton ;  and  that  the  plaintiff  had  formerly  given  to  the  defendant 
a  mortgage  of  certain  goods  owned  and  used  by  the  plaintiff  in  his 
shop,  some  of  which  goods  the  plaintiff  testified  that  he  subsequently 
carried  to  his  house,  and  were  among  the  goods  taken  by  the  defend- 
ant." 


CTHAP.    Xlll.]  TRESPASS.  495 

The  defendant  claimed  all  the  articles  taken  by  him,  under  the  bill 
of  sale  and  mortgage,  and  contended  that,  from  the  circumstances 
proved,  he  had  a  riglit  to  believe  that  at  the  time  of  the  entry  the 
plaintiff  did  not  intend  to  return  to  Taunton;  and  he  asked  the  judge 
to  rule  tliat  "  if  the  plaintiff  had  left  the  city  with  his  family,  leaving 
household  furniture,  the  defendant's  property,  in  his  last  place  of 
residence  in  the  city,  a  hired  tenement,  and  the  defendant,  having 
reasonable  cause  to  believe,  and  believing,  that  the  plaintiff  and  family 
did  not  intend  to  return,  entered  said  residence  in  a  quiet  and  peace- 
able manner  and  took  away  his  goods,  causing  no  other  disturbance 
than  was  necessary  in  order  to  get  the  same,  he  would  not  be  liable 
in  this  action."  The  judge  refused  so  to  rule;  and  ruled  that  "if 
the  defendant  entered  tlie  plaintiff's  dwelling-house  in  the  manner 
shown  by  the  plaintiff's  evidence  above  reported,  and  carried  away  tlie 
goods  as  shown  by  the  plaintiff's  evidence,  he  would  be  liable  in  this 
action  for  a  forcible  entry,  although  he  went  there  to  get  his  own 
property;  and  that  the  defendant  would  have  no  right  to  enter  the 
same  in  such  a  manner,  and  for  such  a  purpose,  without  some  license 
or  permission  from  the  plaintiff,  express  or  implied,  other  than  the 
mere  fact  that  his  goods  were  in  said  premises  under  the  circum- 
stances before  stated."  The  jury  returned  a  verdict  for  the  plaintiff, 
and  the  defendant  alleged  exceptions. 

Wells,  J.  The  defendant  was  liable  as  a  trespasser  for  entering 
the  plaintiff's  close,  unless  he  can  justify  his  entry  by  some  legal 
right,  or  by  some  license  or  permission  so  to  do.  The  plaintiff's 
absence  will  not  excuse  him.  Eeasonable  cause  to  believe,  and  actual 
belief  that  the  plaintiff  and  his  family  did  not  intend  to  return,  are 
no  defence.  The  only  question  is,  whether  the  ruling  of  the  court 
below  was  correct,  that  "the  mere  fact  that  his  goods  were  in  said 
premises  under  the  circumstances  stated  "  did  not  furnish  a  sufficient 
ground  from  which  a  license,  permission  or  legal  right  could  be  in- 
ferred. 

In  the  decision  of  this  question,  we  must  assume  that  the  defend- 
ant's claim  would  have  been  sustained,  that  his  title,  as  mortgagee  of 
all  property  taken  away  by  him,  was  valid,  and  his  mortgage  debt 
unpaid.  He  had  a  right  then  to  the  possession  of  the  property  which 
he  took. 

But  the  possession  of  the  plaintiff,  as  mortgagor,  was  not  wrongful. 
The  goods  were  rightfully  upon  his  premises.  There  is  nothing  to 
show  that  the  terms  of  the  mortgage,  or  bill  of  sale,  under  which  the 
defendant  claimed  them,  gave  him  any  special  authority  to  enter  for 
the  purpose  of  recovering  the  property,  in  any  event;  nor  that  the 
removal  of  the  goods  from  the  shop  to  the  house,  or  from  Providence 
to  Taunton,  was  inconsistent  with  the  rights  of  the  mortgagee,  or 
against  his  wishes.  The  removal  from  Providence  was  about  two 
years  before  the  time  of  this  entry. 


496  MCLEOD    V.    JONES.  [CHAP.    XIIl. 

The  goods  then  were  rightfully  in  the  custody  of  the  plaintiff,  and 
within  his  close.  The  defendant  was  the  owner  of  the  legal  title,  with 
a  present  right  of  possession.  Does  that  alone  justify  him  in  a  breach 
of  the  plaintiff's  close  ?  A  majority  of  the  court  are  of  opinion  that  it 
does  not. 

One  whose  goods  are  stolen,  or  otherwise  illegally  taken  from  him, 
may  pursue  and  retake  them  wherever  they  may  be  found.  No  one  can 
deprive  him  of  this  right,  by  wrongfully  placing  them  upon  his  own 
close.  Patrick  v.  Colerick,  3  M.  &  \V.  483.  Webb  v.  Beavan,  6  M.  & 
G.  1055,  and  note.  Com.  Dig.  Trespass  D,  citing  2  Eol.  Ab.  5G5, 
1.  54.  Bac.  Ab.  Trespass,  F,  1.  But  if  they  are  deposited  upon  the 
land  of  another,  who  is  not  a  participant  in  the  wrongful  taking,  the 
owner  cannot  enter  upon  his  land  to  retake  them;  unless  in  case  of 
theft,  and  fresh  pursuit.  20  Vin.  Ab.  506,  Trespass  H,  a.  2,  pi.  4,  5. 
So,  from  the  necessity  of  the  case,  one  whose  cattle  escape  upon  the 
land  of  another  may  follow  and  drive  them  back,  without  being  a 
trespasser,  unless  the  escape  itself  was  a  trespass.  Com.  Dig.  Tres- 
pass D,  citing  2  Eol.  Ab.  565,  1.  35. 

In  these  cases,  the  law  gives  the  party  a  right  to  enter  for  that 
particular  purpose. 

In  other  cases  a  right  or  license  to  enter  upon  land  results,  or  may 
be  inferred,  from  the  contracts  of  the  parties  in  relation  to  personalty. 
Permission  to  keep,  or  the  right  to  have  one's  personal  property  upon 
the  land  of  another,  involves  the  right  to  enter  for  its  removal.  Doty 
V.  Gorham,  5  Pick.  487.  Bac.  Ab.  Trespass  F,  1.  White  v.  Elwell, 
48  Maine,  360. 

A  sale  of  chattels,  which  are  at  the  time  upon  the  land  of  the 
seller,  will  authorize  an  entry  upon  the  land  to  remove  them,  if,  by  the 
express  or  implied  terms  of  the  sale,  that  is  the  place  where  the 
purchaser  is  to  take  them.  Wood  v.  Manley,  11  Ad.  &  El.  34.  Nettle- 
ton  V.  Sikes,  8  Met.  34.  Giles  v.  Simonds,  15  Gray,  441.  Drake  v. 
Wells,  11  Allen,  141.    McNeal  v.  Emerson,  15  Gray,  384. 

A  license  is  implied,  because  it  is  necessary  in  order  to  carry  the 
sale  into  complete  effect;  and  is  therefore  presumed  to  have  been  in 
contemplation  of  the  parties.  It  forms  a  part  of  the  contract  of  sale. 
The  seller  cannot  deprive  the  purchaser  of  his  property,  or  drive  him 
to  an  action  for  its  recovery,  by  withdrawing  his  implied  permission 
to  come  and  take  it.  This  proposition  does  not  apply,  of  course,  to 
a  case  where  a  severance  from  the  realty  is  necessary  to  convert  the 
subject  of  the  sale  into  personalty,  and  the  revocation  is  made  before 
such  severance. 

But  there  is  no  such  inference  to  be  drawn,  when  the  property,  at 
the  time  of  sale,  is  not  upon  the  seller's  promises;  or  when,  by  the 
terms  of  the  contract,  it  is  to  be  delivered  elsewhere.  And  when  there 
is  nothing  fxecutory  or  incomplete  between  the  parties  in  respect  to 
the  properly,  and  there  is  no  relation  of  contract  between  them  af- 


CHAP.    XIII.]  TRESPASS.  497 

fecting  it,  except  what  results  from  the  facts  of  ownership  or  legal 
title  in  one,  and  possession  in  the  other,  no  inference  of  a  license  to 
enter  upon  lands  for  the  recovery  of  the  property  can  be  drawn  from 
that  relation  alone.  20  Vin.  Ab.  508,  Trespass  H,  a.  2,  pi.  18.  iVn- 
thony  V.  Haneys,  8  Bing.  186.     Williams  v.  Morris,  8  M.  &  W.  488. 

We  think  the  authorities  cited  illustrate  and  establish  these  dis- 
tinctions. 

It  is  said  in  Com.  Dig.  Trespass  D,  citing  2  Eol.  Ab.  5GG,  1.  30, 
that  I  may  not  enter  lands  "  for  retaking  goods,  which  he,  who  holds 
them  in  common  with  me,  put  there ;  for  though  a  tenant  in  common 
may  retake  goods  in  common,  when  the  other  takes  them,  yet  he  can- 
not justify  a  trespass  to  do  it." 

In  Wood  V.  Manley,  11  Ad.  &  El.  34,  where  the  doctrine  that  a  sale 
of  goods,  to  be  taken  on  the  premises  of  the  seller,  gives  a  license  to 
the  purchaser  to  enter  and  take  them,  is  laid  down,  it  is  guarded  by 
the  remark  of  Patteson,  J.,  "  I  do  not  say  that  a  mere  purchase  will 
give  a  license." 

In  Bac.  Ab.  Trespass  F,  1,  it  is  said :  "  But  if  J.  S.  have  com- 
manded to  A.  to  deliver  a  beast  to  J.  N.  and  J.  N.  go  into  the  close 
of  J.  S.  to  receive  the  beast,  the  action  does  lie;  for,  as  the  beast 
might  have  been  delivered  at  the  gate  of  the  close,  the  going  of  J.  N. 
thereinto  is  not  necessary." 

In  the  note  to  Webb  v.  Beavan,  6  M.  &  G.  1055,  is  a  citation  from 
the  year  books,  9  Edw.  IV.  35,  in  which  Littleton,  J.,  after  laying 
down  the  doctrine  that  a  man  may  enter  the  close  of  another  to  re- 
take his  own  goods  wrongfully  put  there,  is  reported  to  have  said: 
"  But  it  is  otherwise  if  I  bail  goods  to  a  man.  I  cannot  enter  his 
house  and  take  the  goods,  for  they  did  not  come  there  by  wrong,  but 
by  the  act  of  us  both." 

It  is  by  the  act  of  both,  that  goods,  upon  which  the  defendant  had 
only  a  chattel  mortgage,  leaving  the  possession  rightfully  with  the 
plaintiff,  were  in  the  plaintiff's  house.  In  20  Vin.  Ab.  507,  Tres- 
pass H,  a.  2,  pi.  12,  it  is  said :  "  If  a  man  takes  my  goods  and  puts 
them  upon  his  land,  I  may  enter  and  retake  them.  Contrary  upon 
bailment  of  goods,"  citing  the  above  authority  of  Littleton.  A  note 
contains  the  following :  "  When  a  man  bails  goods  to  another  to 
keep,  it  is  not  lawful  for  him,  though  the  doors  are  open,  to  enter 
into  the  house  of  the  bailee  and  to  take  the  goods,  but  ought  to  demand 
them ;  and  if  they  are  denied,  to  bring  writ  of  detinue,  and  to  obtain 
them  by  law,"  citing  Bro.  Ab.  Trespass,  pi.  208,  and  21  Hen.  VII.  13. 
A  right  to  enter  the  premises  of  the  mortgagor,  without  legal  process, 
is  not  essential  to  the  security  of  the  mortgagee  of  personal  property. 
Permission  to  do  so  is  not  implied,  therefore,  from  the  existence  of 
that  relation  alone.  If  there  was  anything  in  the  form  of  the  mort- 
gage or  bill  of  sale,  or  in  the  nature  and  circumstances  of  the  plain- 
tiff's possession  of  the  property,  which  gave  the  defendant  a  right  to 


498  MALCOLM    V.    SPOOR.  [CHAP.    XIII. 

seek  it  within  the  close  of  the  plaintiff,  where  it  had  been  deposited 
since  the  date  of  the  mortgage  or  bill  of  sale,  it  should  have  been  made 
to  appear.  The  burden  was  upon  the  defendant  to  establish  the  spe- 
cial right  which  he  set  up  in  justification  of  his  entry.  At  the  trial, 
he  based  his  right  to  enter,  solely  upon  his  title  to  the  personal  prop- 
erty, and  the  supposed  abandonment  of  the  premises  by  the  plaintiff; 
and  asked  the  court  to  rule  that  that  was  sufficient.  The  court  held 
it  to  be  insufficient  "  without  some  license  or  permission  from  the 
plaintiff,  express  or  implied."  The  defendant  does  not  show  that 
there  was  anything  in  the  terms  of  his  bill  of  sale  or  mortgage,  or  in 
the  situation  of  the  property  at  the  time  it  was  made,  or  in  the  cir- 
cumstances of  the  plaintiff's  possession  at  the  time  of  the  entry,  from 
which  such  license  or  permission  would  be  implied;  and  he  asked  no 
instructions  upon  the  evidence,  upon  that  point,  if  any  existed  at  the 
trial. 

In  McXeal  v.  Emerson,  15  Gray,  384,  the  property  mortgaged  was 
furniture,  which  remained  in  the  same  situation  as  when  the  mort- 
gage was  made,  and  the  circumstances  left  the  case  in  the  same  posi- 
tion substantially  as  a  sale  of  personal  property  to  be  removed  by 
the  purchaser. 

In  the  case  of  Heath  v.  Eandall,  4  Cush.  195,  the  jury  must  have 
found,  under  the  instructions  given  them,  that  the  contract  was  that 
the  defendant  had  a  right  to  take  the  property  away  any  day  until 
paid  for;  which  was  plainly  understood  to  mean  a  right  to  take  it 
from  the  premises  of  the  bailee.  It  is  to  be  observed  also,  that  in  that 
case  the  question  pressed  in  the  argument,  and  to  which  the  discus- 
sion by  the  court  was  mainly  directed,  was  that  of  the  right  to  ter- 
minate the  bailment  without  demand  of  the  balance  due  upon  the  con- 
ditional purchase;  the  right  of  entry  upon  the  plaintiff's  close  being 
considered  only  incidentally. 

A  majority  of  the  court  are  of  opinion  that  the  facts  reported  in 
this  case  are  not  sufficient  to  sustain  the  justification  relied  on  by 
the  defendant,  and  that  the  instructions  upon  that  point  were  cor- 
rect. If  the  defendant  established  his  title  to  the  property  taken 
away,  he  would  of  course  be  liable  only  for  such  injury  as  he  did  to  the 
plaintiff's  house.  But  no  question  appears  to  be  raised  as  to  the 
measures  of  damages,  and  we  are  to  presume  that  proper  instructions 
upon  that  point  were  given. 

Exceptions  overruled. 


MALCOLM   V.    SPOOE. 

Supreme  Court  of  Massachusetts,  March,  1847.     12  Met.  279. 

The  case  is  stated  in  tlio  opinion  of  the  court. 

SiiAW,  C.  J.    Tliis  was  an  action  of  trespass,  in  which  the  plain- 


CHAP.    XIII.]  TRESPASS.  499 

tiff  declared  against  the  defendant  for  breaking  and  entering  her 
house,  &c.  Tlie  defendant  justified  under  a  writ  directed  to  him,  as 
constable,  and  commanding  him  to  attach  the  plaintiff's  household 
furniture. 

The  case  comes  before  us  on  exceptions,  from  which  it  appears  that 
the  defendant  was  a  constable,  and  that  he  entered  the  plaintiff's 
house,  having  a  writ  against  her,  and  attached  her  furniture;  that 
he  took  with  him  into  the  house  a  man  who  was  intoxicated,  whom 
he  made  keeper  of  the  attached  furniture,  and  left  in  the  house  in 
charge  of  the  furniture,  although  the  plaintiff  objected  to  his  remain- 
ing there  as  keeper,  on  account  of  his  intoxication. 

The  exceptions  also  set  forth  the  violent  conduct  of  the  keeper,  and 
other  matters,  which  are  not  material  to  the  decision  of  the  question 
that  is  brought  before  us. 

The  Court  of  Common  Pleas,  in  which  the  trial  was  had,  instructed 
the  jury  that  if  the  defendant,  under  color  of  his  process,  took  with 
him  a  grossly  intoxicated  and  clearly  unfit  person  into  the  plaintiff's 
house,  and  left  him  therein  as  keeper,  this  was  such  an  abuse  of  his 
authority  as  made  him  a  trespasser  ab  initio ;  and  that  the  defendant 
was  answerable  for  all  the  acts  of  such  keeper,  done  in  pursuance  of 
previous  concert  between  them,  or  by  direction  of  the  defendant.  A 
verdict  was  returned  for  the  plaintiff ;  and  the  question  whether  these 
instructions  were  right  has  been  submitted  to  us  without  argument. 

It  has  been  held  as  a  rule  of  the  common  law,  ever  since  the  Six 
Carpenters'  Case,  8  Co.  146,  that  where  one  is  acting  under  an  author- 
ity conferred  by  law,  an  abuse  of  his  authority  renders  him  a  tres- 
passer ab  initio.  Melville  v.  Brown,  15  Mass.  82.  In  the  case  before 
us,  the  defendant  had  authority  by  law  to  enter  the  plaintiff's  house, 
to  serve  legal  process;  but  placing  there  an  unfit  and  unsuitable  per- 
son, to  keep  possession  of  the  attached  goods  in  his  behalf,  until  he 
could  remove  them,  against  the  remonstrance  of  the  plaintiff,  was  an 
abuse  of  his  authority,  which  rendered  him  liable  as  a  trespasser  ab 
initio. 

An  officer  cannot  legally  stay  in  another's  building,  to  keep  attached 
goods  therein,  nor  authorize  any  other  person  to  remain  therein,  as 
keeper,  for  a  longer  time  than  is  reasonably  necessary  to  enable  him  to 
remove  the  goods,  unless  he  has  the  consent,  express  or  implied,  of 
the  owner  of  the  building,  without  rendering  himself  liable  as  a 
trespasser.    See  Eowley  v.  Eice,  11  Met.  337. 

Exceptions  overruled. 


500  ADAMS    V.    RIVERS.  [CHAP.   XIII. 

ADAMS    V.    EIVERS. 
Supreme  Court  of  New  York,  July.  1851.     11  Barbour.  390. 

Action  for  trespass,  brought  in  a  justice's  court.  The  plaintiff 
proved  that  he  was  in  possession  of  premises  bounded  on  a  public 
street,  and  that  he  owned  to  the  middle  thereof,  subject  to  an  case- 
ment in  the  public;  that  the  defendant  came  upon  the  sidewalk  in 
front  of  the  plaintiff's  premises,  and  remained  there  a  considerable 
time,  using  vile  and  abusive  language  toward  the  plaintiff. 

The  plaintiff  also  proved  that  he  was  in  possession  of  other  prem- 
ises, with  buildings  thereon,  and  that  the  defendant  came  upon  the 
piazza  of  the  plaintiff's  house,  and  used  insulting  language  toward 
the  plaintiff.  The  defendant  moved  for  a  nonsuit,  upon  the  ground 
(among  others)  that  the  locus  in  quo  was  a  public  street,  and  the 
plaintiff  had  not  proved  any  damages.  The  defendant  also  moved  to 
strike  out  the  testimony  of  the  conversation  and  acts  done  by  the  de- 
fendant in  the  highways,  which  motion  was  denied.  There  was  a 
verdict  for  the  plaintiff,  and  the  defendant  appealed  to  the  county 
court,  which  court  reversed  the  judgment.  One  ground  of  reversal 
was,  that  the  evidence  of  the  language  and  conversation  of  the  defend- 
ant on  the  sidewalk  of  public  streets  was  improperly  admitted. 

Thereupon,  the  plaintiff  brought  this  appeal  to  the  Supreme  Court. 

WiLLARD,  P.  J.  .  .  .  The  plaintiff  proved,  prima  facie,  that  he 
owned  and  possessed  both  the  lots  mentioned  in  the  complaint.  These 
lots  being  bounded  by  public  streets,  extended  to  the  centre  of  the 
street.  This  is  undoubtedly  the  legal  presumption.  In  Adams  v. 
The  Saratoga  and  Washington  Railroad  Co.  just  decided  by  this  court, 
11  Barb.  414,  all  the  leading  cases  are  collected.  2  Kent's  Com.  433. 
2  Johns.  363.  1  Wend.  270.  2  Id.  473.  8  Id.  106.  11  Id.  486.  4 
Paige,  513.  12  Wend.  98.  15  John.  447.  2  Smith's  Leading  Cases  by 
Hare  and  Wallace,  173,  and  note.  2  Str.  1004.  I  shall  assume  that  to 
be  the  law,  without  a  more  extended  review  of  the  cases.  As  was  well 
remarked  by  Justice  Cowen  in  Pearsall  v.  Post,  20  Wend.  121,  the 
relative  rights  both  of  owner  and  passenger  in  a  highway,  are  well 
understood  and  familiarly  dealt  with  by  the  law.  Subject  to  the 
right  of  mere  passage,  the  owner  of  the  soil  is  still  a1)solute  master. 
The  horseman  cannot  stop  to  graze  his  steed,  without  being  a  tres- 
passer ;  it  is  only  in  case  of  inevitable,  or  at  least  accidental  detention, 
tliat  he  can  be  excused  even  in  halting  for  a  moment. 

Til  is  brings  us  to  the  main  question  in  tlie  case,  whether  the  de- 
fendant by  using  abusive  and  insidting  language  to  the  plnintiff, 
became  a  trespasser  from  the  beginning.  The  testimony  authorized 
the  jury  to  find  that  the  defendant  came  on  to  the  premises  of  the 
plaintiff,  covered  by  the  street,  not  in  the  legitimate  use  of  the  high- 


CHAP.    XIII.]  TRESPASS.  501 

way  as  a  place  of  travel,  but  for  the  express  purpose  of  abusing  him. 
The  opprol)rious  language  used  by  the  defendant  was  not  actionable 
as  slanderous.  It  was  highly  provoking  and  tended  directly  to  a 
breach  of  the  peace.  It  was  received  in  evidence  merely  to  show  that 
the  defendant  was  a  trespasser,  having  forfeited  his  privilege  by  a 
gross  abuse  of  it;  and  not  indirectly  to  recover  damages  before  the 
justice,  for  actionable  words.  It  is  conceded  that  the  justice  had  no 
jurisdiction  of  an  action  of  slander. 

The  general  doctrine  as  laid  down  in  The  Six  Carpenters'  Case,  8 
Co.  146,  a,  is  that  when  an  entry,  authority  or  license  is  given  to  any 
one  by  the  law,  and  he  doth  abuse  it,  he  shall  be  a  trespasser  ab 
initio;  but  when  an  entry,  authority  or  license  is  given  by  the  party, 
and  he  abuses  it,  then  he  must  be  punished  for  the  abuse,  but  shall 
not  be  a  trespasser  ab  initio.  In  accordance  with  this  distinction,  it 
is  held  that  if  a  man  enter  an  inn  or  tavern,  and  subsequently  com- 
mits a  trespass ;  if  the  lord  who  distrains  for  rent,  or  the  owner  for 
damage  feasant,  works  or  kills  tlie  distress;  or  if  he  who  enters  to 
see  waste,  breaks  the  house,  or  stays  there  all  night;  or  if  the  com- 
moner cuts  down  a  tree,  in  these  and  the  like  cases  the  law  adjudges 
that  he  entered  for  that  purpose;  and  because  the  act  ivhich  demon- 
strates it  is  a  trespass,  he  shall  be  a  trespasser  ab  initio.  Six  Carpen- 
ters' Case,  supra. 

In  all  the  cases  put  by  Coke,  the  acts  complained  of  as  abuses  of 
the  power,  were  distinct  acts  of  trespass.  And  it  seems  to  be  the 
better  opinion  that  a  man  cannot  become  a  trespasser  ab  initio,  by 
any  act  or  omission,  which  would  not  itself,  if  not  protected  by  a 
license,  be  the  subject  of  trespass.  Thus  in  Shorland  v.  Govett,  5 
B.  &  C.  485,  the  sheriff's  officer  justified  a  trespass  under  a  fi.  fa.,  and 
it  was  held  that  a  demand  by  the  officer  of  more  than  was  due  by 
the  warrant,  did  not  make  him  a  trespasser  from  the  beginning. 
The  reason  is,  that  the  original  levy  was  lawful,  and  extortion  is  not 
an  act  for  which  trespass  will  lie.  In  Gates  v.  Lounsbury,  20  John. 
429,  Spencer,  Ch.  J.,  says,  that  where  an  act  is  badly  done,  it  cannot 
be  made  illegal  ab  initio,  unless  by  some  positive  act  incompatible 
with  the  exercise  of  the  legal  right  to  do  the  first  act.  And  the  same 
learned  judge  in  Gardiner  v.  Campbell,  15  John.  402,  recognizes  the 
distinction  in  The  Six  Carpenters'  Case,  between  the  actual  and 
positive  abuse  of  a  thing,  taken  originally  by  authority  of  the  law, 
and  a  mere  nonfeasance,  such  as  a  refusal  to  deliver  an  article  dis- 
trained. And  Bronson,  J.,  affirms  the  same  principle  in  Hale  v.  Clark, 
19  Wend.  498,  that  a  mere  nonfeasance  will  never  make  a  man  a  tres- 
passer from  the  beginning;  some  act  is  required  to  be  shown.  The 
same  doctrine  is  recognized  by  elementary  writers.  2  Leigh's  N".  P. 
1445.  2  Phil.  Ev.  197,  198.  'l  Smith's  Leading  Cases,  by  Hare  and 
Wallace,  165,  166. 

The  case  of  Adams  v.  Adams,  13  Pick.  384,  establishes  the  doctrine 


502  ADAMS    V.    RIVERS.  [CHAP,    XIII. 

that  the  omission  of  a  distrainor  to  afford  proper  food  and  water  to 
distrained  cattle,  made  the  distrainor  a  trespasser  from  the  beginning. 
And  in  Bond  v.  Wilder,  16  Verm.  E.  399,  the  neglect  of  an  officer 
to  sell  goods  advertised  under  an  execution,  in  pursuance  of  his  ad- 
vertisement, was  held  to  work  the  same  consequence.  Both  these 
cases  are  believed  to  be  a  departure  from  the  English  law,  and  they 
certainly  are  not  in  harmony  with  the  New  York  cases. 

Savage,  Ch.  J.,  in  Allen  v.  Crofoot,  5  Wend.  509,  does  not  admire 
the  distinction  taken  by  Coke  between  the  abuse  of  a  license  granted 
by  law,  and  a  license  granted  by  the  party.  And  he  thinks  a  better 
reason  was  given  for  it  in  Bacon's  Abridgment,  title  Trespass  B. 
Where  the  law  has  given  an  authority,  it  is  reasonable  that  it  should 
make  void  every  thing  done  by  the  abuse  of  authority,  and  leave  the 
abuser  as  if  he  had  done  everything  without  authority.  But  where 
a  man,  who  was  under  no  necessity  to  give  an  authority,  does  so,  and 
the  person  receiving  the  authority  abuses  it,  there  is  no  reason  why 
the  law  should  interfere  to  make  void  everything  done  by  such  abuse ; 
because  it  was  a  man's  folly  to  trust  another  with  an  authority  who 
was  not  fit  to  be  trusted  therewith. 

No  case  has  been  cited  showing  that  a  man  will  forfeit  a  license 
granted  by  law,  by  the  use  of  vituperative  language;  and  none  such 
have  fallen  under  my  notice.  In  all  the  cases,  except  Adams  v.  Adams 
and  Bond  v.  Wilder,  some  positive  act,  such  as  if  done  without  au- 
thority would  be  a  trespass,  has  been  held  essential  to  make  the  party 
a  trespasser  ab  initio.  These  cases  may  have  been  decided  upon  local 
statutes. 

It  is  quite  clear  that  the  uttering  abusive  language  was  not  an  act 
for  which  the  plaintiff  could  maintain  trespass  against  the  defendant. 
Had  such  language  been  uttered  in  an  inn  by  a  guest  to  the  landlord, 
it  would  have  afforded  just  cause  for  the  latter  to  expel  the  former. 
So  doubtless  in  The  Six  Carpenters'  Case,  their  refusal  to  pay  for 
their  room,  though  it  did  not  make  their  original  entry  unlawful, 
would  have  justified  the  landlord  in  ordering  them  to  depart.  Story 
on  Bail.  484. 

The  right  of  an  innkeeper  to  refuse  to  receive  a  guest,  or  to  order 
him  to  depart,  rests  on  reasons  peculiar  to  that  relation.  Id.  484. 
An  innkeeper  is  bound  to  receive  all  travellers  and  sojourners  who 
are  willing  to  pay  a  price  adequate  to  the  sort  of  accommodation  pro- 
vided, and  who  come  in  a  situation  in  which  they  are  fit  to  be  received. 
3  Barn.  &  Aid.  283. 

"  A  highway,"  says  Swift,  justice,  in  Peck  v.  Smitli,  1  Conn.  Rep. 
132,  "is  nothing  but  an  easement,  comprehending  merely  tlie  right 
of  all  the  indivifluals  in  the  community  to  pass  and  repass,  with  the 
incidental  right  in  the  public  to  do  all  the  acts  necessary  to  keep  it 
in  repair.  Tbis  fasement  does  not  comprehend  any  interest  in  the 
soil,  nor  give  the  public  the  legal  possession  of  it."    In  this  state,  since 


CHAP.    XIII.]  TRESPASS.  503 

the  adoption  of  the  revised  statutes,  the  public,  under  certain  circum- 
stances, may  have  a  qualified  right  of  pasturage,  by  certain  animals, 
at  certain  seasons.  Griffin  t'.  Martin,  7  Barb.  297.  The  use  of  the 
highway,  by  any  person  for  any  purpose  other  than  to  pass  and  repass, 
is  a  trespass  upon  the  person  who  owns  the  fee  of  the  road.  1  Xew 
Hamp.  Eep.  16.  Babcock  v.  Lamb,  1  Cowen,  238.  Jackson  v.  Hatha- 
way, 15  John.  447.  But  no  act  will  amount  to  a  trespass  unless  the 
same  act  would  be  a  trespass  if  committed  on  any  other  land  of  the 
plaintiff.  Language,  however  licentious  and  abusive,  is  not  a  tres- 
pass, within  the  appropriate  meaning  of  that  term.  Nor  can  a  party 
be  made  a  trespasser  upon  the  freehold  of  the  adjoning  owners  of  the 
soil,  by  the  uttering  of  abusive  language  as  he  passes  along  the  road. 
A  person  who  disturbs  the  public  peace  as  he  passes  along  the  road, 
by  singing  obscene  songs  and  using  boisterous  and  obscene  language, 
may  be  liable  to  be  punished  at  the  suit  of  the  public,  for  a  breach 
of  the  peace,  but  he  is  not  liable  in  trespass  at  the  suit  of  the  adjoin- 
ing owners.    These  acts,  however  censurable,  are  not  acts  of  trespass. 

The  foregoing  remarks  show  that  if  the  action  was  sought  to  be 
maintained  on  the  ground  that  the  defendant  became,  while  passing 
on  the  road,  a  trespasser  from  the  beginning,  by  reason  of  his  abusive 
language  to  the  plaintiff,  the  action  cannot  be  maintained.  The 
county  judge  must  have  taken  this  view  of  the  case :  for  one  of  the 
reasons  for  the  reversal  is  that  evidence  was  received  by  the  justice, 
under  objections,  of  the  language  and  conversation  of  the  defendant 
on  the  side  walks  of  public  streets,  and  in  his  judgment  no  action 
could  be  maintained  for  that  cause.  It  is  presumed  that  the  county 
judge  supposed  that  the  abusive  language  was  proved,  not  as  a  sub- 
stantive cause  of  action,  but  as  showing  that  the  defendant  had  for- 
feited his  right  to  be  in  the  highway  on  the  plaintiff's  premises;  in 
short  that  he  was  a  trespasser  ab  initio,  by  reason  of  his  abusive  con- 
duct. .  .  . 

[The  court  held,  however,  that  the  judgment  of  the  county  court 
should  be  reversed  and  that  of  the  justice  affirmed,  upon  other 
grounds,  one  of  which  was  that  a  distinct  trespass  was  shown  in  the 
defendant's  coming  upon  the  plaintiff's  piazza.] 

Judgment  reversed. 


504  FOULDES    V.    AVILLOUGHBY.  [CHAP.   XIV. 


CHAPTER    XIV. 

CONVEESION. 

FOULDES  V.  WILLOUGHBY. 

Court  of  Exchequer  of  England,  June,  1841.     8  M.  &  W.  540. 

Trover  for  divers,  to  wit,  two  horses.  Plea:  ISTot  guilty.  The 
cause  was  tried  before  Maule,  J.,  at  the  last  spring  assizes  for  Liver- 
pool, when  it  appeared  that  the  defendant  was  the  occupier  or  man- 
ager of  a  ferry  by  means  of  steamboats  over  the  river  Mersey,  from 
Birkenhead  to  Liverpool,  and  that  on  the  15th  of  October,  1840,  the 
plaintiff  had  embarked  on  board  the  defendant's  ferry-boat  at  Birken- 
head, having  with  him  two  horses,  for  the  carriage  of  which  he  had 
paid  the  usual  fare.  It  was  alleged  that  the  plaintiff  misconducted 
himself  and  behaved  improperly  after  he  came  on  board  the  steam- 
boat, and  when  the  defendant  came  on  board  he  told  the  plaintiff  that 
he  would  not  carry  the  horses  over,  and  that  he  must  take  them  on 
shore.  The  plaintiff  refused  to  do  so,  and  the  defendant  took  the 
horses  from  the  plaintiff,  who  was  holding  one  of  them  by  the  bridle, 
and  put  them  on  shore  on  the  landing  slip.  They  were  driven  to  the 
top  of  the  slip,  which  was  separated  by  gates  from  the  high  road,  and 
turned  loose  on  the  road.  They  were  shortly  afterwards  seen  in  the 
stables  of  a  hotel  at  Birkenhead,  kept  by  the  defendant's  brother. 
The  plaintiff  remained  on  board  the  steamboat,  and  was  conveyed 
over  the  river  to  Liverpool.  On  the  following  day  the  plaintiff  sent 
to  the  hotel  for  the  horses,  but  the  parties  in  whose  possession  they 
were  refused  to  deliver  them  up.  A  message,  however,  was  afterwards 
sent  to  him  by  the  hotel-keeper,  to  the  effect  that  he  might  have  the 
horses  on  sending  for  them  and  paying  for  their  keep;  and  that  if 
he  did  not  send  for  them  and  pay  for  their  keep,  they  would  be  sold  to 
pay  the  expense  of  it.  The  plaintiff  then  brought  the  present  action. 
The  horses  were  subsequently  sold  l)y  auction.  Tlio  defence  set  up  at 
the  trial  was,  that  the  plaintiff  had  misconducted  himself  and  behaved 
improperly  on  board,  and  that  the  horses  were  sent  on  shore  in  order  to 
get  rid  of  the  plaintiff,  by  inducing  him  to  follow  them.  The  learned 
judge  told  tlie  jury  that  the  defendant,  by  taking  the  horses  from  the 
plaintiff  and  turning  them  out  of  the  vessel,  had  been  guilty  of  a 
conversion,  unless  they  thought  the  plaintiff's  conduct  had  justified 
his  removal  from  the  steamboat,  and  ho  had  refused  to  go  without 
his  horses;   and  that  if  they  thought  the  conversion  was  proved,  they 


CHAP.    XIV.]  CONVERSION.  505 

might  give  the  plaintiff  damages  for  tlie  full  value  of  the  horses.  The 
jury  found  a  verdict  for  the  plaintiff  with  £40  damages,  the  value 
of  the  horses. 

In  Easter  term  last,  a  rule  was  obtained  calling  upon  the  plaintiff 
to  show  cause  why  the  verdict  should  not  be  set  aside  on  the  ground 
of  misdirection,  both  as  to  the  proof  of  a  conversion,  and  also  as  to  the 
amount  of  the  damages. 

Lord  Abixger,  C.  B.  This  is  a  motion  to  set  aside  the  verdict  on 
the  ground  of  an  alleged  misdirection;  and  I  cannot  help  thinking 
that  if  the  learned  judge  who  tried  the  cause  had  referred  to  the  long 
and  frequent  distinctions  which  have  been  taken  between  such  a 
simple  asportation  as  will  support  an  action  of  trespass,  and  those 
circumstances  which  are  requisite  to  establish  a  conversion,  he  would 
not  have  so  directed  the  jury.  It  is  a  proposition  familiar  to  all  law- 
yers, that  a  simple  asportation  of  a  chattel,  without  any  intention  of 
making  any  further  use  of  it,  although  it  may  be  a  sufficient  founda- 
tion for  an  action  of  trespass,  is  not  sufficient  to  establish  a  conver- 
sion. I  had  thought  that  the  matter  had  been  fully  discussed,  and 
this  distinction  established,  by  the  numerous  cases  which  have  oc- 
curred on  this  subject;  but,  according  to  the  argument  put  forward 
by  the  plaintiff's  counsel  to-day,  a  bare  asportavit  is  a  sufficient  foun- 
dation to  support  an  action  of  trover.  I  entirely  dissent  from  this 
argument;  and  therefore  I  think  that  the  learned  judge  was  wrong, 
in  telling  the  jury  that  the  simple  fact  of  putting  these  horses  on 
shore  by  the  defendant,  amounted  to  a  conversion  of  them  to  his  own 
use.  In  my  opinion,  he  should  have  added  to  his  direction,  that  it 
was  for  them  to  consider  what  was  the  intention  of  the  defendant  in 
so  doing.  If  the  object,  and  whether  rightly  or  wrongfully  enter- 
tained is  immaterial,  simply  was  to  induce  the  plaintiff  to  go  on  shore 
himself,  and  the  defendant,  in  furtherance  of  that  object,  did  the  act 
in  question,  it  was  not  exercising  over  the  horses  any  right  inconsist- 
ent with,  or  adverse  to,  the  rights  which  the  plaintiff  had  in  them. 
Suppose,  instead  of  the  horses,  the  defendant  had  put  the  plaintiff 
himself  on  shore,  and,  on  being  put  on  shore,  the  plaintiff  had  refused 
to  take  his  horses  with  him,  and  the  defendant  had  said  he  would 
take  them  to  the  other  side  of  the  water,  and  had  done  so,  would  that 
be  a  conversion  ?  That  would  be  a  much  more  colorable  case  of  a  con- 
version than  the  present,  because,  by  separating  the  man  from  his 
property,  it  might,  with  some  appearance  of  fairness,  be  said  the  party 
was  carrying  away  the  horses  without  any  justifiable  reason  for  so 
doing.  Then,  having  conveyed  them  across  the  water,  and  finding 
neither  the  owner  or  any  one  else  to  receive  them,  what  is  he  to  do 
with  them  ?  Suppose,  under  those  circumstances,  the  defendant  lands 
them,  and  leaves  them  on  shore,  would  that  amount  to  a  conversion? 
The  argument  of  the  plaintiff's  counsel  in  this  case  must  go  the 
length  of  saying  that  it  would.     Then,  suppose  the  reply  to  be  that 


506  rOULDES    V.    WILLOUGHBY,  [chap.    XIV. 

those  circumstances  would  amount  to  a  conversion,  I  ask,  at  what 
period  of  time  did  the  conversion  take  place?  Suppose  the  plaintiff 
had  immediately  followed  his  horses  when  they  were  put  on  shore, 
and  resumed  possession  of  them,  would  there  be  a  conversion  of  them 
in  that  case?  I  apprehend,  clearly  not.  It  has  been  argued  that  the 
mere  touching  and  taking  them  by  the  bridle  would  constitute  a  con- 
version, but  surely  that  cannot  be;  if  the  plaintiff  had  immediately 
gone  on  shore  and  taken  possession  of  them,  there  could  be  no  con- 
version. Then  the  question,  whether  this  were  a  conversion  or  not, 
cannot  depend  on  the  subsequent  conduct  of  the  plaintiff  in  following 
the  horses  on  shore.  Would  any  man  say,  that  if  the  facts  of  this 
case  were,  that  the  plaintiff  and  defendant  had  had  a  controversy  as  to 
whether  the  horses  should  remain  in  the  boat,  and  the  defendant  had 
said,  "  If  you  will  not  put  them  on  shore,  I  will  do  it  for  you,"  and, 
in  pursuance  of  that  threat,  he  had  taken  hold  of  one  of  the  horses 
to  go  ashore  with  it,  an  action  of  trover  could  be  sustained  against 
him?  There  might,  perhaps,  in  such  a  case,  be  ground  for  maintain- 
ing an  action  of  trespass,  because  the  defendant  may  have  had  no 
right  to  meddle  with  the  horses  at  all;  but  it  is  clear  that  he  did  not 
do  so  for  the  purpose  of  taking  them  away  from  the  plaintiff,  or  of 
exercising  any  right  over  them,  either  for  himself  or  for  any  other 
person.  The  case  which  has  been  cited  from  Strange's  Eeports,  of 
Bushell  V.  Miller,  seems  fully  in  point.  There  the  plaintiff  and  de- 
fendant, who  were  porters,  had  each  a  stand  on  the  Custom-House 
Quay.  The  plaintiff  placed  goods  belonging  to  a  third  party  in  such 
a  ma.nner  that  the  defendant  could  not  get  to  his  chest  without  re- 
moving them,  which  he  accordingly  did,  and  forgot  to  replace  them, 
and  the  goods  were  subsequently  lost.  Now  suppose  trespass  to  have 
been  brought  for  that  asportation,  the  defendant,  in  order  to  justify 
the  trespass,  would  plead  that  he  removed  the  parcels,  as  he  lawfully 
might,  for  the  purpose  of  coming  at  his  own  goods;  and  the  court 
there  said  that,  whatever  ground  there  might  be  for  an  action  of  tres- 
pass in  not  putting  the  package  back  in  its  original  place,  there  was 
none  for  trover,  inasmuch  as  the  object  of  the  party  in  removing  it 
was  one  wholly  collateral  to  any  use  of  the  property,  and  not  at  all 
to  disturb  the  plaintiff's  rights  in  or  dominion  over  it.  Again,  sup- 
pose a  man  puts  goods  on  board  of  a  boat,  which  the  master  thinks 
are  too  heavy  for  it,  and  refuses  to  carry  them,  on  the  ground  that 
it  might  be  dangerous  to  his  vessel  to  do  so,  and  the  owner  of  the  goods 
Bays,  "  If  you  put  ray  goods  on  shore,  I  will  go  with  them,"  and  he 
does  so ;  would  that  amount  to  a  conversion  in  the  master  of  the  ves- 
sel, even  assuming  his  judgment  as  to  the  weight  of  the  goods  to  be 
quite  erroneous,  and  that  there  really  would  be  no  danger  whatever 
in  taking  them?  In  order  to  constitute  a  coiiversion,  it  is  necessary 
either  tliat  the  party  taking  the  goods  should  intend  some  use  to  be 
made  of  them,  by  himself  or  by  those  for  whom  he  acts,  or  that,  owing 


CHAP.    XIV.  J  CONVERSION.  507 

to  his  act,  the  goods  are  destroyed  or  consumed,  to  the  prejudice  of  the 
lawful  owner.  As  an  instance  of  the  latter  branch  of  this  definition, 
suppose,  in  the  present  case,  the  defendant  had  thrown  the  horses  into 
the  water,  whereby  they  were  drowned,  that  would  have  amounted  to 
an  actual  conversion ;  or  as  in  the  case  cited  in  the  course  of  the 
argument,  of  a  person  throwing  a  piece  of  paper  into  the  water;  for, 
in  these  cases,  the  chattel  is  changed  in  quality,  or  destroyed  alto- 
gether. But  it  has  never  yet  been  held  that  the  single  act  of  removal 
of  a  chattel,  independent  of  any  claim  over  it,  either  in  favor  of  the 
party  himself  or  any  one  else,  amounts  to  a  conversion  of  the  chattel. 
In  the  present  case,  therefore,  the  simple  removal  of  these  horses  by 
the  defendant,  for  a  purpose  wholly  unconnected  with  any  the  least 
denial  of  the  right  of  the  plaintiff  to  the  possession  and  enjoyment 
of  them,  is  no  conversion  of  the  horses,  and  consequently  the  rule  for 
a  new  trial  ought  to  be  made  absolute. 

With  respect  to  the  amount  of  damage,  it  was  altogether  a  question 
for  the  jury.  I  am  not  at  all  prepared  to  say,  that  if  the  jury  were 
satisfied  that  there  had  been  a  conversion  in  this  case,  they  would  be 
doing  wrong  in  giving  damages  to  the  full  value  of  the  horses.  I  do 
not  at  all  rest  my  judgment  on  that  point,  but  put  it  aside  entirely. 
If  the  judge  had  told  the  jury  that  there  was  evidence  in  the  case  from 
whence  they  might  infer  that  a  conversion  of  these  horses  had  taken 
place  at  some  time,  it  would  have  been  difi^erent;  but  his  telling  them 
that  the  simple  act  of  pvitting  them  on  shore  amounted  to  a  conver- 
sion, I  think,  was  a  misdirection,  on  which  the  defendant  is  entitled 
to  a  new  trial. 

Aldeeson,  B.  I  am  of  the  same  opinion.  As  to  the  last  point,  it 
would  be  a  strange  thing  to  disturb  the  verdict  on  the  ground  that 
the  jury  had  given  as  damages  the  full  value  of  these  horses;  for  it 
appears  that  they  were  ultimately  sold,  and  the  plaintiff  never  re- 
gained possession  of  them.  If,  therefore,  the  original  act  of  taking 
the  horse  really  amounted  to  a  conversion  of  them,  it  would  be  a 
strong  proposition  for  us  to  say,  that  the  plaintiff  was  not  entitled 
to  recover  their  full  value,  as  damages  for  the  wrongful  act  done. 
But  the  mere  circumstance  which  the  learned  judge  in  this  case  put 
to  the  jury,  as  constituting  the  conversion,  docs  not  necessarily 
amount  to  one.  Any  asportation  of  a  chattel  for  the  use  of  the 
defendant,  or  a  third  person,  amounts  to  a  conversion ;  for  this  sim- 
ple reason,  that  it  is  an  act  inconsistent  with  the  general  right  of 
dominion  which  the  owner  of  the  chattel  has  in  it,  who  is  entitled 
to  the  use  of  it  at  all  times  and  in  all  places.  When,  therefore,  a 
man  takes  that  chattel,  either  for  the  use  of  himself  or  of  another, 
it  is  a  conversion.  So,  if  a  man  has  possession  of  my  chattel,  and 
refuses  to  deliver  it  up,  this  is  an  assertion  of  a  right  inconsistent 
■with  my  general  dominion  over  it,  and  the  use  which  at  all  times, 
and  in  all  places,  I  am  entitled  to  make  of  it;    and  consequently 


508  SPOOXER   v.    MANCHESTER.  [CHAP.    XIV. 

amounts  to  an  act  of  conversion.  So  the  destruction  of  the  chattel 
is  an  act  of  conversion,  for  its  elfect  is  to  deprive  me  of  it  altogether. 
But  the  question  here  is,  where  a  man  does  an  act,  the  effect  of  which 
is  not  for  a  moment  to  interfere  with  my  dominion  over  the  chattel, 
but,  on  the  contrary,  recognizing  throughout  my  title  to  it,  can  such 
an  act  as  that  be  said  to  amount  to  a  conversion?  I  think  it  cannot. 
Why  did  this  defendant  turn  the  horses  out  of  his  boat  ?  Because  he 
recognized  them  as  the  property  of  the  plaintiff.  He  may  have  been  a 
wrong-doer  in  putting  them  ashore ;  but  how  is  that  inconsistent  with 
the  general  right  which  the  plaintiff  has  to  the  use  of  the  horses  ?  It 
clearly  is  not;  it  is  a  wrongful  act  done,  but  only  like  any  common 
act  of  trespass  to  goods  with  which  the  party  has  no  right  to  meddle. 
Scratching  the  panel  of  a  carriage  would  be  a  trespass;  but  it  would 
be  a  monstrous  thing  to  say  that  it  would  be  a  ground  for  an  action 
of  trover;  and  yet  to  that  extent  must  the  plaintiff's  counsel  go  if 
their  argument  in  this  case  be  sound.  But  such  is  not  the  law;  and 
the  true  principle  is  that  stated  by  Chambre  and  Holroyd,  JJ.,  when 
at  the  bar,  in  their  argument  in  the  case  of  Shipwick  v.  Blanchard, 
6  T.  R.  299  that  "  In  order  to  maintain  trover  the  goods  must  be  taken 
or  detained,  with  intent  to  convert  them  to  the  taker's  own  use,  or  to 
the  use  of  those  for  whom  he  is  acting."  This  definition,  indeed,  re- 
quires an  addition  to  be  made  to  it,  namely,  that  the  destruction  of 
the  goods  will  also  amount  to  a  conversion.  For  these  reasons,  I  think, 
in  the  case  before  us,  the  question  ought  to  have  been  left  to  the  jury 
to  say,  whether  the  act  done  by  the  defendant,  of  seizing  these  horses 
and  putting  them  on, shore,  was  done  with  the  intention  of  convert- 
ing them  to  his  own  use,  i.  e.,  with  the  intention  of  impugning,  even 
for  a  moment,  the  plaintiff's  general  right  of  dominion  over  them. 
If  so,  it  would  be  a  conversion;    otherwise  not. 

EoLFE  and  Gurney,  BB.,  delivered  concurring  opinions. 

Rule  absolute. 


SPOONEE  V.  MANCHESTEE. 

Supreme  Court  of  Massachusetts,  September,  1882.     133  Mass.  270. 

At  the  trial  in  the  Superior  Court,  before  Dewey,  J.,  without  a 
jury,  it  appeared  that,  on  a  Sunday  in  January,  1879,  the  defendant 
hired  a  horse  of  the  plaintiff  at  Worcester  to  go  to  Clinton,  a  town 
situated  twelve  miles  northerly  from  Worcester,  and  return  on  the 
evening  of  the  same  day;  that  the  defendant  drove  the  horse  to 
Clinton  over  the  road  usually  travelled  between  Worcester  and  Clin- 
ton ;  that  he  had  never  been  over  that  road  before ;  that  he  started 
with  the  horse  to  return  from  Clinton  to  Worcester  over  the  same 
road  about  nine  o'clock  in  the  evening;    that,  after  he  had  travelled 


CHAP.    XIV.]  CONVERSION.  509 

a  short  distance  from  Clinton,  he  unintentionally  took  the  usually 
travelled  road  from  Clinton  to  Northl^orough,  a  town  about  ten  miles 
southeasterly  from  Clinton  and  about  ten  miles  easterly  from  Worces- 
ter, and  not  the  direct  road  from  Clinton  to  Worcester,  and  not  on 
the  road  usually  travelled  between  those  places;  that  after  proceed- 
ing five  or  six  miles  on  said  road  from  Clinton  to  Northborough  be- 
yond where  said  road  diverged  from  the  road  to  Worcester,  he  dis- 
covered that  he  was  on  the  wrong  road,  although  he  had  gone  but  a 
mile  or  two  from  Clinton  before  he  first  thought  he  was  not  on  the 
road  to  Worcester;  that,  upon  discovering  that  fact,  he  drove  back 
on  said  road  a  short  distance,  and  was  informed  that  it  would  be  the 
best  way  from  that  point  to  go  through  ISTorthborough  to  Worcester; 
that  he  then  turned  round  and  started  towards  Worcester  through 
ISTorthborough;  and  that,  when  passing  round  a  corner  in  North- 
borough,  the  horse  became  lame  and  disabled. 

It  did  not  appear  that  said  injury  was  caused  to  the  horse  by  any 
want  of  due  care  in  the  manner  he  was  managing  the  same  at  the 
time  of  the  injury,  or  that  the  defendant  was  not  in  the  exercise  of 
ordinary  care  when  he  lost  his  way. 

Upon  these  facts,  the  plaintiff  contended  that  he  was  entitled  to 
recover  for  said  injury  to  the  horse;  and  the  defendant  asked  the 
judge  to  rule  that  he  was  not  liable  for  said  injury. 

The  judge  ruled  the  defendant  was  liable  for  said  injury,  and 
found  for  the  plaintiff;    and  the  defendant  alleged  exceptions. 

Field,  J.  This  case  apparently  falls  within  the  decision  in  Hall 
V.  Corcoran,  107  Mass.  251,  except  that  this  defendant  unintentionally 
took  the  wrong  road  on  his  return  from  Clinton  to  Worcester,  and 
when,  after  travelling  on  it  five  or  six  miles,  he  discovered  his  mis- 
take, he  intentionally  took  what  he  considered  the  best  way  back  to 
Worcester,  which  was  by  circuit  through  ISTorthborough. 

The  case  has  been  argued  as  if  it  were  an  action  of  tort  in  the 
nature  of  trover,  and,  although  the  declaration  is  not  strictly  in  the 
proper  form  for  such  an  action,  both  parties  desire  that  it  should  be 
treated  as  if  it  were,  and  we  shall  so  consider  it. 

As  the  horse  was  hired  and  used  on  Sunday,  and  it  does  not  appear 
that  this  was  done  from  necessity  or  charity,  and  also  as  it  does  not 
appear  that  the  horse  was  injured  in  consequence  of  any  want  of  due 
care  on  the  part  of  the  defendant,  or  that  the  defendant  was  not  in 
the  exercise  of  ordinary  care  when  he  lost  his  way,  the  question 
whether  the  acts  of  the  defendant  amounted  to  a  conversion  of  the 
horse  to  his  own  use  is  vital.  The  distinction  between  acts  of  trespass, 
acts  of  misfeasance  and  acts  of  conversion  is  often  a  substantial  ona 
In  actions  in  the  nature  of  trespass  or  case  for  misfeasance,  the 
plaintiff  recovers  only  the  damages  which  he  has  suffered  by  reason 
of  the  wrongful  acts  of  the  defendant;  but,  in  actions  in  the  nature 
of  trover,  the  general  rule  of  damages  is  the  value  of  the  property  at 


510  SPOONER    V.    MANCHESTER.  [CHAP.    XIV. 

the  time  of  the  conversion,  diminished  when,  as  in  this  case,  the 
property  has  been  returned  to  and  received  by  the  owner,  by  the  value 
of  the  property  at  the  time  it  was  returned,  so  that  after  the  conversion 
and  until  the  delivery  to  the  owner  the  property  is  absolutely  at  the 
risk  of  the  person  who  has  converted  it,  and  he  is  liable  to  pay  for  any 
depreciation  in  value,  whether  that  depreciation  has  been  occasioned 
by  his  negligence  or  fault,  or  by  the  negligence  or  fault  of  any  other 
person,  or  by  inevitable  accident  or  the  act  of  God.  Perham  v.  Coney, 
117  Mass.  102. 

The  satisfaction  b}^  the  defendant  of  a  judgment  obtained  for  the 
full  value  of  the  property  vests  the  title  to  the  property  in  him,  by 
relation,  as  of  the  time  of  the  conversion.  Conversion  is  based  upon 
the  idea  of  an  assumption  by  the  defendant  of  a  right  of  property  or 
a  right  of  dominion  over  the  thing  converted,  which  casts  upon  him 
all  the  risks  of  an  owner,  and  it  is  therefore  not  every  wrongful  in- 
termeddling with,  or  wrongful  asportation  or  wrongful  detention  of, 
personal  property,  that  amounts  to  a  conversion.  Acts  which  them- 
selves imply  an  assertion  of  title  or  of  a  right  of  dominion  over  per- 
sonal property,  such  as  a  sale,  letting  or  destruction  of  it,  amount  to 
a  conversion,  even  although  the  defendant  may  have  honestly  mis- 
taken his  rights;  but  acts  which  do  not  in  themselves  imply  an 
assertion  of  title,  or  of  a  right  of  dominion  over  such  property,  will 
not  sustain  an  action  of  trover,  .unless  done  with  the  intention  to 
deprive  the  owner  of  it  permanently  or  temporarily,  or  vmless  there 
has  been  a  demand  for  the  property  and  a  neglect  or  refusal  to  deliver 
it,  which  are  evidence  of  a  conversion,  because  they  are  evidence  that 
the  defendant  in  withholding  it  claims  the  right  to  withhold  it,  which 
is  a  claim  of  a  right  of  dominion  over  it. 

In  Spooner  v.  Holmes,  102  Mass.  503,  Mr.  Justice  Gray  says  that 
the  action  of  trover  "  cannot  be  maintained  without  proof  that  the 
defendant  either  did  some  positive  wrongful  act  with  the  intention 
to  appropriate  the  property  to  himself  or  to  deprive  the  rightful  owner 
of  it,  or  destroyed  the  property,"  and  the  authorities  are  there  cited. 
Fouldes  V.  Willoughby,  8  M.  &  W.  540,^  is  a  leading  case,  establishing 
the  necessity,  in  order  to  constitute  a  conversion,  of  proving  an  in- 
tention to  exercise  some  right  or  control  over  tlie  property  inconsistent 
with  the  right  of  the  lawful  owner,  when  the  act  done  is  equivocal 
in  its  nature.  See  also  Simmons  v.  Lillystone,  8  Exch.  431;  Wilson 
V.  McLaughlin,  107  Mass.  587. 

It  is  argued  that  the  act  of  tlie  defendant  in  this  case  was  a  user 
of  the  horse  for  his  own  benefit,  inconsistent  witli  the  terms  of  the 
bailment,  and  that  tlie  defendant's  mistake  in  taking  the  wrong  road 
was  immaterial,  and  these  cases  are  cited;  Wheelock  v.  Wheelwright, 
5  Mass.  10-1.  ITnnicr  v.  Thwing,  3  Pick.  493.  Lucas  v.  Trumbull, 
15  Gray,  300.     Hall  v.  Corcoran,  ubi  supra.     In  each  of  these  cases, 

*  AnK'.   p.  r)04. 


CHAP.   XIV.  J  CONVERSION.  511 

there  was  an  intentional  act  of  dominion  exercised  over  the  horse 
hired,  inconsistent  with  the  right  of  the  owner. ^ 

In  Wellington  v.  Wentworth,  8  Met.  548,  a  cow,  going  at  large  in 
the  highway  without  a  keeper,  joined  a  drove  of  cattle,  in  May  or 
June,  1842,  without  the  knowledge  of  the  owner  of  the  drove,  and  was 
driven  into  New  Hampshire  and  pastured  there,  during  the  season, 
with  the  defendant's  cattle,  and  in  tlie  autumn  returned  with  the 
drove  and  was  delivered  to  the  plaintiff;  and  it  was  held  that  there 
was  no  conversion.  Chief  Justice  Shaw  says,  however,  that  "  it  was 
the  plaintiff's  own  fault  that  his  cow  was  at  large  in  the  highway, 
and  entered  the  defendant's  drove."  Yet  if  the  defendant  had  driven 
the  cow  to  New  Hampshire  and  pastured  her  there  with  his  cattle, 
knowing  that  she  belonged  to  the  plaintiff  and  intending  to  deprive 
him  of  her,  there  can  be  no  doubt  that  it  would  have  been  a  conversion. 

Parker  v.  Lombard,  100  Mass.  405,  and  Loring  v.  Mulcahy,  3 
Allen,  575,  were  both  decided  upon  the  ground  that  the  defendant 
neither  assumed  to  dispose  of  the  property  as  his  own,  nor  intended 
to  withhold  the  property  from  the  plaintiff. 

Nelson  v.  Whetmore,  1  Rich.  318,  was  an  action  of  trover  for  the 
conversion  of  a  slave,  who  was  travelling  as  free  in  a  public  convey- 
ance, and  was  taken  as  a  servant  by  the  defendant;  and  the  decision 
was,  that  to  constitute  a  conversion  the  defendant  must  have  known 
that  he  was  a  slave. 

In  Gilmore  v.  Newton,  9  Allen,  171,  the  defendant  not  only  exer- 
cised dominion  over  the  horse,  by  holding  him  as  a  horse  to  which  he 
had  the  title  by  purchase,  but  also  by  letting  him  to  a  third  person. 
The  defendant  actually  intended  to  treat  the  horse  as  his  own. 

If  a  person  wrongfull}'^  exercises  acts  of  ownership  or  of  dominion 
over  property  under  a  mistaken  view  of  his  rights,  the  tort,  notwith- 
standing his  mistake,  may  still  be  a  conversion,  because  he  has  both 
claimed  and  exercised  over  it  the  rights  of  an  owner;  but  whether 
an  act  involving  the  temporary  use,  control  or  detention  of  property 
implies  an  assertion  of  a  right  of  dominion  over  it,  may  well  depend 
upon  the  circumstances  of  the  case  and  the  intention  of  the  person 
dealing  with  the  property.  Fouldes  v.  Willoughby,  ubi  supra.  Wil- 
son V.  McLaughlin,  ubi  supra.  Nelson  v.  Merriam,  4  Pick.  249. 
Houghton  V.  Butler,  4  T.  E.  364.    Heald  v.  Carey,  11  C.  B.  977. 

In  the  case  at  bar,  the  use  made  of  the  horse  by  the  defendant  was 
not  of  a  different  kind  from  that  contemplated  by  the  contract  be- 
tween the  parties,  but  the  horse  was  driven  by  the  defendant,  on 
his  return  to  \Yorcester,  a  longer  distance  than  was  contemplated, 
and  on  a  different  road.  If  it  be  said  that  the  defendant  intended 
to  drive  the  horse  where  in  fact  he  did  drive  him,  yet  he  did  not  intend 
to  violate  his  contract  or  to  exercise  any  control  over  the  horse  in- 
consistent with  it.     There  is  no  evidence  that  the  defendant  was  not 

»  Compare  Doolittle  v.  Shaw,  92  la.  348. 


512  BEISTOL    V.    BURT.  [CHAP.    XIV. 

at  all  times  intending  to  return  the  horse  to  the  plaintiff,  according 
to  his  contract,  or  that  whatever  he  did  was  not  done  for  that  pur- 
pose, or  that  he  ever  intended  to  assume  any  control  or  dominion 
over  the  horse  against  the  rights  of  the  owner.  After  he  discovered 
that  he  had  taken  the  wrong  road,  he  did  what  seemed  best  to  him  in 
order  to  return  to  Worcester.  Such  acts  cannot  be  considered  a  con- 
version. 

Whether  a  person  who  hires  a  horse  to  drive  from  one  place  to 
another  is  not  bound  to  know  or  ascertain  the  roads  usually  travelled 
between  the  places,  and  is  not  liable  for  all  damages  proximately 
caused  by  any  deviation  from  the  usual  ways,  need  not  be  considered. 

An  action  on  the  case  for  driving  a  horse  beyond  the  place  to  which 
he  was  hired  to  go,  was  apparently  known  to  the  common  law  a  long 
time  before  the  declaration  in  trover  was  invented.  21  Edw.  IV.  75, 
pi.  9. 

Exceptions  sustained. 


BEISTOL  V.  BUET. 

Supreme  Court  of  New  York,  November,   1810.     7  Johns.  254. 

This  was  an  action  of  trover,  brought  to  recover  the  value  of 
ninety-five  barrels  of  potashes.  The  cause  was  tried  at  the  Onondaga 
Circuit,  the  7th  of  June,  1810,  before  the  Chief  Justice. 

The  defendant  was  in  1808,  and  still  is,  the  collector  of  the  port  of 
Oswego,  on  the  south  side  of  Lake  Ontario.  In  May,  1808,  the  de- 
fendant was  applied  to,  to  know  whether  he  would  grant  clearances 
for  ashes  for  the  port  of  Sackett's  Harbor,  which  is  the  next  adjoining 
port  in  the  county  of  Jefferson,  and  on  the  south  side  of  the  lake,  and 
adjacent  to  the  province  of  Canada.  The  defendant  answered  that 
he  did  and  should  continue  to  grant  clearances;  and  the  defendant 
was  informed  of  the  intention  of  the  plaintiff  to  bring  ashes  to 
Oswego,  for  the  purpose  of  sending  them  to  Sackett's  Harbor.  About 
the  1st  of  July,  the  plaintiff  sent  ninety-five  barrels  of  potashes  to 
Oswego,  which  were  put  into  the  store  of  a  Mr.  Wontworth,  who  gave 
the  plaintiff  a  receipt  for  them.  The  plaintiff  applied  to  the  defend- 
ant for  a  clearance,  in  order  to  transport  the  ashes  to  Sackett's  Har- 
bor; but  the  defendant  refused  to  grant  it,  alleging  as  a  reason  for 
his  refusal  that  tliough  he  did  not  suspect  the  plaintiff  intended  to 
send  the  ashes  to  a  British  port,  yet  he  believed  that  the  collector  at 
Sackett's  Harbor  would  not  do  his  duty,  and  that  the  ashes  would  be 
sent  thence  to  a  British  port.  The  defendant  at  the  same  time  prom- 
ised the  plaintiff  that,  if  he  did  not  receive  instrnctions  to  the  con- 
trary from  ilie  Sccretnry  of  tlie  Treasury  witliin  a  fortniglit,  he  would 
give  a  cIcararuT  to  tlic  pliiintifr's  ashes.     After  tlie  expiration  of  that 


CHAP.    XIV.]  CONVERSION.  513 

time,  the  defendant  still  refused  to  grant  the  clearance,  though  he 
admitted  that  he  had  received  no  new  instructions  from  the  Secretary 
of  the  Treasury,  nor  had  he  received  any  instructions  forbidding  such 
clearances.  He  assigned  no  other  reason  for  his  refusal  than  liis  sus- 
picion that  the  collector  at  Sackett's  Harbor  would  not  do  his  duty; 
and  persisted  in  refusing  a  clearance,  though  the  plaintiff  offered  to 
give  bonds  that  the  ashes  should  be  delivered  at  Sackett's  Harbor. 
The  plaintiff  then  expressed  his  desire  to  take  the  ashes  up  the  river; 
but  the  defendant  declared  that  the  plaintiff  should  not  take  them 
from  Wentworth's  store,  unless  he  gave  bonds  for  double  the  value  of 
the  property,  to  carry  the  ashes  to  Rome,  in  the  county  of  Oneida, 
and  leave  them  there,  while  the  embargo  continued ;  that  the  property 
was  under  his  jurisdiction  and  charge;  that  he  had  control  over  all 
the  stores  and  wharves  where  ashes  were  placed,  and  had  employed 
armed  men;  and  that  he  had  the  right  to  prevent  their  removal,  and 
would  exercise  it.  Two  armed  men  were  stationed  near  Wentworth's 
store  during  two  nights,  and  an  armed  sentinel  was  constantly  on 
duty,  night  and  day,  at  the  public  store  of  the  collector,  within  ten 
rods  of  Wentworth's  store,  and  in  view  of  it,  for  the  purpose  of  ob- 
serving boats,  and  preventing  the  removal  of  the  property.  The 
defendant  avowed  his  determination  not  to  permit  any  ashes  to  be 
removed  from  any  of  the  stores  in  Oswego.  The  defendant  demanded 
the  ashes  in  question  from  Wentworth,  who  refused  to  deliver  them; 
but,  in  order  to  prevent  the  defendant  from  proceeding  to  extremities, 
and  to  satisfy  him,  Wentworth  entered  into  an  agreement  with  the 
defendant  not  to  deliver  any  property  from  his  store  without  the  per- 
mission of  the  defendant. 

In  the  autumn  of  1808,  the  defendant  gave  a  general  permission 
to  remove  any  ashes  from  Oswego  up  the  river,  and  thirteen  barrels 
of  the  potash  of  the  plaintiff  were  delivered  by  Wentworth  to  his 
order. 

On  the  13th  February,  1809,  the  defendant  gave  a  written  permit 
to  carry  the  remaining  eighty-two  barrels  of  potashes  from  Oswego 
to  Rome,  in  the  county  of  Oneida,  requiring  of  the  person  to  whom 
they  were  delivered  by  order  of  the  plaintiff  a  written  report  of  the 
ashes,  and  an  oath  that  the  statement  was  true,  and  that  he  did  not 
intend  to  violate  the  law. 

It  was  proved  that,  when  the  plaintiff  applied  to  the  defendant  for 
a  clearance  to  Sackett's  Harbor,  potashes  were  worth  at  that  place 
$180  per  ton,  and  that  the  expense  of  transportation  was  $4  per  ton. 
That  the  price  of  potashes  on  the  21st  July,  1808,  in  the  city  of  New 
York,  was  $173  per  ton,  but  would  not  sell  at  Salina,  in  the  county 
of  Onondaga,  for  more  than  $150.  That  when  the  plaintiff  received 
the  ashes,  the  price  of  them,  in  the  city  of  Albany,  was  $173.50,  and 
the  expense  of  transportation  from  $25  to  $30  per  ton. 

The  Chief  Justice  charged  the  jury  that,  in  his  opinion,  there  was 


514  BRISTOL   V.    BURT.  [CHAP.    XIV. 

sufficient  evidence  of  a  conversion  by  the  defendant,  and  that  the 
plaintiff  was  entitled  to  recover  for  the  difference  in  the  value  of  the 
ashes  at  the  time  when  he  demanded  a  clearance  and  at  the  time  he 
received  them.  And  the  jury  found  a  verdict  for  the  plaintiff,  for 
$1,472.20. 

A  case  was  made  for  the  opinion  of  the  court,  which  it  was  agreed 
might  be  turned  into  a  special  verdict. 

Per  Curiam,  The  only  point  made  in  this  case  is,  whether  there 
was  sufficient  evidence  of  a  conversion  to  justify  the  verdict. 

There  were  declarations  and  acts  of  the  defendant  united  to  form 
a  control  over  the  plaintiff's  property.  The  very  denial  of  goods  to 
him  that  has  a  right  to  demand  them,  says  Lord  Holt,  in  Baldwin 
V.  Cole,  6  Mod.  212,  is  a  conversion;  for  what  is  a  conversion  but 
an  assuming  upon  one's  self  the  property  and  right  of  disposing  of 
another's  goods?  And  he  that  takes  upon  himself  to  detain  another 
man's  goods  from  him  without  a  cause,  takes  upon  himself  the  right 
of  disposing  of  them.  The  bare  denial  to  deliver  is  not  always  a 
conversion,  as  in  Thimblethorpe's  Case  (cited  in  Bulst.  310,  314), 
where  a  piece  of  timber  was  left  upon  the  land  of  the  defendant  by 
the  lessee  at  the  expiration  of  his  term,  and  he  was  requested  to 
deliver  it  and  refused,  but  suffered  the  timber  to  lie  without  inter- 
meddling with  it.  The  reason  why  this  was  held  not  to  be  a  conver- 
sion was,  that  there  was  no  act  done  or  dominion  exercised;  but  in 
the  present  case  there  were  the  highest  and  most  unequivocal  acts  of 
dominion  and  control  over  the  property;  not  only  by  claiming  juris- 
diction over  it,  but  in  placing  armed  men  near  it  to  prevent  its 
removal.  This  fact  is  of  itself  a  conversion.  It  is  intermeddling  with 
the  property  in  the  most  decisive  manner,  and  detaining  it  for  months 
in  the  storehouse.  It  was,  therefore,  bringing  a  charge  upon  the 
plaintiff ;  and  this,  says  Mr.  Justice  Buller,  in  Syeds  v.  Hay,  4  Term 
Eep.  260,  amounts  to  a  conversion.  Neither  the  case  of  M'Combie  v. 
Davies,  6  East,  538,  nor  the  anonymous  case  in  12  Mod.  344,  were 
so  strong  as  this,  and  yet  the  conversion  was  maintained.  It  was 
assuming  the  dominion  of  the  property  which  was  made  by  Lord 
Ellenborough  the  test  of  the  conversion,  though  the  property  in  that 
case  lay  not  in  the  defendant's,  but  in  the  king's  warehouse.  The 
definition  of  a  conversion  in  trover,  as  given  by  Mr.  Gwillim,  the 
editor  of  Bacon,  and  now  a  judge  in  India,  applies  precisely  to  this 
case,  n  Bac.  Abr.  677.  "  The  action  being  founded  upon  a  conjunct 
right  of  property  and  possession,  any  act  of  the  defendant,"  says  he, 
"  which  negatives,  or  is  inconsistent  with  such  riglit,  amounts  in  law 
to  a  conversion.  It  is  not  necessary  to  a  conversion  tliat  there  should 
be  a  manual  taking  of  tb(!  tiling  in  question  ]\y  tlie  defendant;  it  is 
not  necessary  that  it  should  be  shown  that  he  has  applied  it  to  his  own 
use.     Docs  he  exercise  a  dominion  over  it  in  exclusion  or  in  defiance 


CHAP.    XIV.]  CONVERSION'.  515 

of  tlie  plaintiil's  right?    If  he  does,  that  is,  in  law,  a  conversion,  be 
it  for  his  own  or  another  person's  use." 

We  are,  therefore,  of  opinion  that  the  motion  to  set  aside  the  ver- 
dict must  be  denied. 

Motion  denied. 


AEMORY  V.  DELAMIEIE. 
In  Middlesex,  coram  Pratt,  C.  J.,  1722.     1  Strange,  505. 

The  plaintiff,  being  a  chimney-sweeper's  boy,  found  a  jewel  and 
carried  it  to  the  defendant's  shop  (who  was  a  goldsmith)  to  know 
what  it  was,  and  delivered  it  into  the  hands  of  the  apprentice,  who, 
under  pretence  of  weighing  it,  took  out  the  stones,  and  calling  to  the 
master  to  let  him  know  it  came  to  three  half-pence,  the  master  of- 
fered the  boy  the  money,  who  refused  to  take  it,  and  insisted  on  having 
the  thing  again;  whereupon  the  apprentice  delivered  him  back  the 
socket  without  the  stones.  And  now  in  trover  against  the  master 
these  points  were  ruled :  — 

1.  That  the  finder  of  a  jewel,  though  he  does  not  by  such  finding 
acquire  an  absolute  property  or  ownership,  yet  he  has  such  a  property 
as  will  enable  him  to  keep  it  against  all  but  the  rightful  owner,  and 
consequently  may  maintain  trover.^ 

2.  That  the  action  well  lay  against  the  master,  who  gives  a  credit 
to  his  apprentice,  and  is  answerable  for  his  neglect.  Jones  v.  Hart,  2 
Salk.  441,  cor.  Holt,  C.  J. ;  ]\Iead  v.  Hamond,  1  Strange,  505 ;  Gram- 
mer  v.  Nixon,  lb.  653. 

3.  As  to  the  value  of  the  jewel,  several  of  the  trade  were  examined 
to  prove  what  a  jewel  of  the  finest  water  that  would  fit  the  socket 
would  be  worth ;  and  the  Chief  Justice  directed  the  jury,  that  unless 
the  defendant  did  produce  the  jewel,  and  show  it  not  to  be  of  the 
finest  water,  they  should  presume  the  strongest  against  him,  and 
7nake  the  value  of  the  best  jewels  the  measure  of  their  damages; 
which,  they  accordingly  did. 


SARGENT  V.  GILE. 

Supreme  Court  of  New  iiampshire,  December,  1836.     8  N.  H.  325. 

Action  of  trover  for  household  furniture. 

On  the  14th  day  of  June,  1834,  the  plaintiffs  delivered  the  furniture 
to  one  Wilson,  under  an  agreement  that  if  Wilson  paid  for  it  in  six 
months,  he  was  to  have  it  at  cost;  and  if  not  paid  for  in  that  time, 
then  he  was  to  pay  twenty-five  per  cent,  of  the  cost  for  the  use  of  it. 

*  Compare  Haythorne  v.  Rushford,  ante,  p.  482. 


516  SARGENT    V.    GYLE.  [CHAP.    7IV. 

On  June  17th  of  the  same  year,  Wilson  sold  the  furniture  to  the 
defendants  who  knew  nothing  of  the  agreement  between  Wilson  and 
the  plaintiffs. 

On  the  same  day,  the  plaintiffs  demanded  the  furniture  of  the 
defendants,  who  replied  that  they  had  bought  it  of  Wilson,  supposing 
that  he  was  the  owner  of  it,  and  that  they  should  not  deliver  it  up 
to  the  plaintiffs,  at  present. 

The  plaintiffs  brought  the  present  suit  on  the  24th  day  of  June. 

Upon  the  trial  a  verdict  was  directed  for  the  plaintiffs,  subject  to  be 
set  aside,  if,  upon  the  foregoing  facts,  the  action  could  not  be  main- 
tained. 

Parker,  J.  In  Vincent  v.  Pardon  Cornell,  13  Pick.  294,  the 
plaintiff,  in  February,  exchanged  oxen  with  William  Cornell,  under 
an  agreement  that  he  should  pay  the  plaintiff  a  certain  sum  by  the 
7th  of  May  following;  and  it  was  agreed,  in  order  to  secure  the 
plaintiff,  that  Cornell  should  keep  the  oxen  until  the  7th  of  May, 
and  return  them  at  that  time,  unless  the  sum  was  paid;  but  if  the 
money  was  paid,  the  plaintiff  was  to  release  his  right  to  them. 

Before  the  time,  William  Cornell  sold  them  to  the  defendant,  and 
the  defendant  to  one  Tripp,  and  after  the  7th  of  May  the  plaintiff 
demanded  them  of  the  defendant,  and  brought  trover.  The  court 
held  that  the  agreement  amounted  to  a  conditional  sale  —  that 
William  Cornell  had,  therefore,  a  right  to  dispose  of  the  possession, 
with  his  right,  such  as  it  was  —  that  the  plaintiff  had  no  possession, 
or  right  of  possession,  and  that  the  taking  by  the  defendant,  and  his 
sale  to  Tripp,  did  not  therefore  amount  to  a  conversion.  Mr.  Justice 
Wilde  said  it  had  been  argued,  that  the  sale  by  William  Cornell  was 
such  a  breach  of  trust  as  to  terminate  the  bailment,  and  to  restore 
to  the  plaintiff  a  right  of  possession,  but  the  argument  could  not  be 
sustained. 

Were  we  to  adopt  all  the  conclusions  in  that  case,  this  action  must 
fail.  But  in  Sanborn  v.  Colman,  6  N.  H.  Eep.  14,  where  the  plaintiff, 
being  the  owner  of  a  mare,  had  let  her,  on  the  1st  February,  1830, 
for  hire,  to  Brown,  for  four  weeks,  and  Brown  sold  bcr  within  five 
days  afterwards,  to  the  defendant;  and  the  plaintiff  denumded  her, 
within  the  four  weeks,  of  the  defendant,  who  refused  to  deliver  her, — 
this  court  held  tliat  the  sale  of  the  mare  put  an  end  to  the  contract 
between  Brown  and  the  plaintiff,  and  that  the  plaintiff  might  main- 
tain trover. 

We  have  re-considered  that  case,  and  are  satisfied  witli  the  decision. 
Unless,  therefore,  the  fact,  that  by  the  original  contract  between 
these  plaintiffs  and  Wilson,  the  latter  had  a  right  io  pay  for  the 
furiiitnre  wilhin  the  six  months,  changes  the  nature  of  tlie  case,  we 
must  hold  that  this  action  is  well  sustained,  and  we  are  all  of  opinion 
that  this  does  not  effect  the  principle. 

It  has  been  held,  that  where  one  receives  goods  and  chattels  of 


CHAP.    XIV.]  CONVERSION.  517 

another,  on  a  contract  by  which  he  has  a  right  to  return  them  or  pay 
a  stipulated  price  or  a  right  to  return  them  or  other  goods,  the  prop- 
erty passes,  and  he  is  regarded  a  purchaser.  3  Mason's  Rep.  478, 
Buffum  V.  Merry;  Story  on  Bailment,  286;  1  Fair.  liep.  31,  Holbrook 
V.  Armstrong;  7  Cowen,  752,  Hurd  v.  West;  2  Kent's  Com.  463.  If 
that  be  so,  Wilson  in  this  case  had  no  option  to  return  any  other 
furniture,  and  there  was  an  express  stipulation  that  the  property 
should  not  be  his  until  the  price  was  paid.  He  cannot  be  regarded 
as  a  purchaser  against  the  express  agreement  of  the  parties,  and  it  is 
not  contended  that  the  property  had  passed.  4  Mass.  405,  Hussey  v. 
Thornton;  17  Mass.  606,  Marston  v.  Baldwin.  He  was  a  bailee  for 
hire,  for  a  certain  time,  with  a  right  to  purchase  if  within  that  time 
he  paid  the  price.  This  he  had  not  done  when  he  sold;  and  the 
contract  by  which  he  gained  the  right  to  purchase  conferred  on  him 
no  right  to  sell,  nor  in  any  manner  enlarged  his  right  as  bailee.  The 
goods  still  remained  the  property  of  the  plaintiffs.  When,  therefore, 
he  undertook  to  sell,  and  delivered  the  plaintiff's  goods  to  others,  in 
violation  of  any  right  which  he  then  had,  or  for  aught  which  appeared, 
ever  would  have,  he  forfeited  the  right  to  hold  and  use,  and  waived 
all  benefit  of  it,  having  voluntarily  deprived  himself  of  that  right  — 
and  the  defendants  could  gain  no  right  of  possession,  because  Wilson 
had  no  power  to  communicate  any  such  right  to  them.  He  had  no 
interest  which  he  could  sell.     6  Green.  Eep.  205. 

These  principles  seem  to  be  sonnd  in  themselves,  and  the  authorities 
appear  fully  to  sustain  them. 

In  Farrant  v.  Thompson,  5  B.  &  Aid.  826,  where  certain  mill 
machinery,  together  with  a  mill,  had  been  demised  for  a  term  to  a 
tenant,  and  he,  without  permission  of  his  landlord,  severed  the 
machinery  from  the  mill,  and  it  was  afterwards  seized  under  a  fieri 
facias  by  the  sheriff,  and  sold  by  him,  it  was  held  that  no  property 
passed  to  the  vendee,  and  that  the  landlord  was  entitled  to  bring 
trover  for  the  machinery,  even  during  the  continuance  of  the  term. 
The  court  took  a  distinction  between  that  case  and  Gordon  v.  Harper, 
7  D.  &  E.  9,  that  in  the  latter  case  the  goods  removed  were  personal 
chattels,  and  the  tenant  had  not  by  any  wrongful  act  put  an  end  to 
his  qualified  possession  of  them;  and  on  this  ground  Pain  v.  Whit- 
aker,  Eyan  &  Moody  99,  in  no  way  conflicts  with  Farrant  v.  Thomp- 
son. 

In  Wilkinson  v.  King,  2  Camp.  335,  the  owner  of  goods  sent  them 
to  a  wharf  where  goods  of  the  same  sort  were  usually  sold.  The 
wharfinger,  without  any  authority,  sold  them  to  a  bona  fide  purchaser, 
who  duly  paid  for  them.  Held,  that  the  sale  did  not  change  the  prop- 
erty, and  that  the  owner  might  maintain  trover  against  the  purchaser. 

In  Loeschman  v.  ^Machin,  2  Stark.  Eep.  311,  where  Brown,  who  had 
hired  a  piano  of  the  plaintiff,  sent  it  to  the  defendant  to  be  sold  by 


518  SARGENT    V.    GILE.  [CHAP.    XIV. 

auction,  and  the  defendant,  on  the  plaintiff's  application,  refused  to 
deliver  it  —  held,  that  he  was  liable  in  trover. 

In  Samuel  v.  Morris,  6  Car.  &  Paj-ne,  620,  the  plaintiff  had  pledged 
certain  goods  to  one  James,  to  secure  the  payment  of  a  debt.  Mr. 
Baron  Park  said,  if  James  had  sold  the  goods  it  would  have  been  such 
a  wrongful  act,  and  so  inconsistent  with  the  bailment,  as  to  have 
immediately  revested  the  right  of  possession  in  the  bailor. 

In  Emerson  v.  Fisk,  6  Green.  200,  where  Michael  &  Alexander  had 
made  a  contract  with  the  plaintiff  to  cut  certain  pine  timber,  to  trans- 
port one-fourth  to  a  certain  place  for  the  owner,  and  to  transport 
the  other  three-fourths  to  the  same  place,  and  agreed  that  the  plaintiff 
should  retain  the  ownership  until  satisfied  that  the  quarter  part  first 
named  was  of  an  average  quality  with  the  whole,  and  until  he  was 
paid  all  debts  due  to  him  from  M.  &  A.  &c.,  and  they  sold  their  in- 
terest to  the  defendants,  and  the  plaintiff  replevied  the  logs  while 
in  transitu,  —  it  was  held,  that  the  contractors  had  no  authority  to 
sell  the  logs  —  that  if  they  had  a  special  property,  it  was  only  as 
bailees  for  a  special  purpose  —  that  the  sale  was  entirely  inconsistent 
with  the  rights  of  the  plaintiff,  as  general  owner  —  that  by  this  un- 
authorized act  the  bailment,  and  their  authority  under  it,  was  deter- 
mined, and  that  the  defendants  could  derive  no  rights  from  the  tor- 
tious act  of  Michael  &  Alexander. 

And  in  Galvin  v.  Bacon,  2  Fairfield  28,  the  plaintiff,  being  the 
owner  of  a  horse,  bailed  him  to  A,  for  use  for  a  limited  period,  under 
the  expectation  of  a  purchase  by  the  latter;  and  during  the  time,  A, 
for  a  valuable  consideration,  and  without  notice,  sold  the  horse  to  B, 
and  he  in  like  manner  to  the  defendant.  It  was  held,  that  no  previous 
demand  was  necessary,  to  enable  the  owner  to  maintain  replevin 
against  the  last  purchaser. 


The  plaintiff  being  the  owner  of  the  goods,  and  having  a  right  of 
possession,  the  only  remaining  question  is.  Does  the  case  show  a 
conversion  by  the  defendants? 

In  Robinson  v.  Burleigh,  5  N.  H.  Rep.  225,  it  was  held  that  a 
refusal  to  deliver  goods  when  demanded  is  only  evidence  of  a  conver- 
sion, and  when  such  refusal  may  be  considered  only  as  a  result  of  a 
reasonable  hesitation,  in  a  doubtful  matter,  it  is  not  sufficient  evidence 
to  prove  a  conversion.  And  this  decision  has  been  followed  in  subse- 
quent cases.  Fletcher  r.  Fletcher,  7  N.  H.  Rep.  452.  Vide,  also,  3 
Stark.  Ev.  1499;  5  B.  &  Aid.  247.  Alexander  v.  Southey. 

P»iit  in  this  case,  all  the  defendants  could  require  was  time  to 
examine  into  the  right  of  the  plaintiffs;  and  ample  time  appears 
to  have  been  given  for  such  examination,  before  this  action  was  com- 
menced. Tt  was  not  necessary  for  the  plaintiffs  to  make  another 
demand.     'J'iiey  were  only  bound  to  wait  a  reasonable  time  before 


CHAP.   XIV.]  CONVERSION.  519 

commencing  their  suit,  to  give  the  defendants  an  opportunity  to 
enquire  and  comply;  and  the  pkintiffs  having  done  this,  the  demand 
and  refusal,  and  subsequent  neglect,  are  sufficient  evidence  of  a  con- 
version. 

It  is  not  material,  therefore,  to  enquire  whether  the  action  might 
not  have  been  sustained  without  any  demand.    2  Fair.  R.  30. 

Judgment  for  the  plaintiffs.^ 


THURSTON  V.  BLANCHARD. 

Supreme  Court  of  Massachusetts,  March,  1839.     22  Pick.  18. 

Trover,  to  recover  the  value  of  certain  goods  alleged  to  have  been 
obtained  by  the  defendant,  from  the  plaintiffs,  by  means  of  false 
and  fraudulent  pretences. 

The  trial  was  before  Putnam,  J.  It  appeared,  that  the  goods  were 
purchased  of  the  plaintiffs  by  the  defendant,  by  means  of  false  repre- 
sentations, on  or  about  the  22d  day  of  March,  1837,  for  the  sum  of 
$677.77;  that  the  defendant  gave  his  negotiable  promissory  note  for 
the  amount,  payable  in  six  months;  that  such  note  had  been  in  the 
possession  of  the  plaintiffs  ever  since  it  was  given;  that  they  had 
never  offered  to  give  it  up  to  the  defendant;  and  that  they  had  not 
made  a  demand  upon  him,  for  the  goods,  before  commencing  this 
suit.  The  plaintiffs  however  produced  the  note  in  court,  at  the  trial, 
and  there  offered  to  give  it  up,  or  to  put  it  on  the  files  of  the  court; 
but  the  defendant  declined  taking  it,  and  it  was  placed  on  the  files. 

The  defendant  offered  no  evidence  in  his  defence,  but  relied  upon 
the  facts,  that  the  note  had  not  been  given  up  or  tendered  to  him  by 
the  plaintiffs,  and  that  no  demand  had  been  made  upon  him  for  a 
return  of  the  goods. 

A  verdict  was  taken  for  the  plaintiffs,  by  consent. 

If  the  Court  should  be  of  opinion,  that  the  action  could  be  main- 
tained, judgment  was  to  be  rendered  on  the  verdict;  otherwise,  the 
plaintiffs  were  to  be  nonsuited. 

Shaw,  C.  J.  We  are  now  to  take  it  as  proved  in  point  of  fact,  to 
the  satisfaction  of  the  jury,  that  the  goods,  for  which  this  action  of 
trover  is  brought,  were  obtained  from  the  plaintiffs  by  a  sale,  but  that 
this  sale  was  influenced  and  effected  by  the  false  and  fraudulent 
representations  of  the  defendant.  Such  being  the  case,  we  think  the 
plaintiffs  were  entitled  to  maintain  their  action,  without  a  previous 
demand.  Such  demand,  and  a  refusal  to  deliver,  are  evidence  of 
conversion  when  the  possession  of  the  defendant  is  not  tortious;  but 
when  the  goods  have  been  tortiously  obtained,  the  fact  is  sufficient 
evidence  of  conversion.  Such  a  sale,  obtained  under  false  and  fraudu- 
lent representations,  may  be  avoided  by  the  vendor,  and  he  may  insist 

iCf.  Bailey  v.  Colby,  34  N.  H.  29. 


520  THURSTON    V.    BLANCHARD.  [CHAP,    XIV. 

that  no  title  passed  to  the  vendee,  or  any  person  taking  under  him, 
other  than  a  bona  fide  purchaser  for  value  and  without  notice,  and 
in  such  case  the  seller  may  maintain  replevin  or  trover  for  his  goods. 
Buffinton  v.  Gerrish,  15  Mass.  R.  156. 

The  only  important  question  is,  whether  the  plaintiffs  had  done 
enough  to  rescind  the  contract  and  reclaim  their  goods  in  this  action, 
without  first  tendering  back  the  note  of  the  defendant,  which  they 
had  received  on  the  sale.  We  are  to  take  it  as  proved,  that  this  was 
a  negotiable  note ;  that  it  had  not  been  negotiated,  either  at  the  time 
the  action  was  brought,  or  at  the  trial,  or  at  any  time;  on  the  con- 
trary, that  it  had  always  remained  with  the  plaintiffs  unindorsed, 
and  was  produced  at  the  trial  and  offered  to  be  surrendered,  and 
placed  on  the  files  of  the  court  for  the  defendant's  use. 

The  rule  undoubtedly  is,  that  if  the  vendor  under  such  circum- 
stances would  rescind  the  contract,  and  take  back  his  property,  if 
he  has  received  a  valuable  consideration,  he  must  restore  it,  whether 
it  be  money  or  goods,  or  the  negotiable  security  of  a  third  person. 
Kimball  v.  Cunningham,  4  Mass.  E.  502. 

The  precise  question  then  is  this,  whether  the  vendee's  own  note  not 
negotiated,  comes  within  the  rule.  Had  it  not  been  negotiable,  we 
think  it  quite  clear,  that  there  would  be  no  necessity  of  returning  it. 
Rescinding  the  contract  for  the  sale,  rescinds  the  contract  of  pay- 
ment by  the  vendee.  A  note  not  negotiable,  would  have  been  nothing 
more  than  an  express  promise  to  pay  for  the  goods,  and  would  have 
been  avoided  with  the  sale.  The  Court  are  of  opinion,  that  a  note, 
though  payable  to  order,  whilst  it  remains  in  the  hands  of  the  prom- 
isee, the  vendor  of  the  goods,  is  to  be  put  on  the  same  footing,  and  that 
the  delivering  it  up  was  not  a  condition  precedent  to  bringing  the  ac- 
tion. If  not  produced  at  the  trial,  to  be  surrendered,  it  might  be  pre- 
sumed that  it  had  been  negotiated,  and  that  would  have  been  a  bar  to 
the  action,  upon  the  rule  stated. 

It  is  somewhat  analogous  to  a  class  of  cases,  which,  though  they  do 
not  arise  here  on  account  of  our  rule,  treating  a  negotiable  note  given 
for  goods  sold  as  payment,  yet  are  common  in  England  and  New  York, 
where  a  different  rule  prevails.  When  a  note  is  given  on  a  sale  of 
goods,  but  is  not  paid  at  maturity,  the  action  is  brought  for  goods 
sold,  and  the  note  is  ])roduccd  at  the  trial,  to  be  surrendered,  and 
to  show  that  it  is  not  outstanding.  If  not  thus  produced,  the  pre- 
sumption would  be,  that  it  had  been  negotiated  and  was  outstanding; 
and  if  it  was  so,  the  vendor  could  not  recover  as  for  goods  sold.  The 
negotial)le  security,  actually  negotiated  and  outstanding,  would  be 
deemed  payment.  But  if  not  outstanding,  such  negotiable  security 
would  lie  deemed  as  only  a  collateral  promise  for  the  payment  of  the 
goods,  and  need  not  be  tendered  before  bringing  the  action  for  goods 
8old  and  rldivcrcd. 

Judgment  on  the  verdict  for  the  plaintiffs. 


CHAP.    XiV.]  CONVEKSION.  521 

HENDEESON  &  CO.  v.  WILLIAMS. 

Court  of  Appeal  of  England,  December,  1894.     1895,  1  Q.  B.  521. 

Action  for  damages  for  conversion  of  150  bags  of  sugar.  The 
plaintiffs  were  sugar  merchants  at  Hull.  The  defendant  was  a  ware- 
houseman carrying  on  l)nsiness  at  Hull  and  Goole.  On  June  3,  1894, 
one  Fletcher,  by  pretending  that  ho  was  Robinson,  negotiated  a  pur- 
chase of  loO  bags  T\.  A.  V.  sugar  from  Messrs.  Grey  &  Co.,  sugar 
merchants,  of  Liverpool,  they  believing  that  they  were  dealing  with 
Robinson,  a  well-known  customer  of  theirs,  through  Fletcher  as  his 
agent.  On  June  6,  Grey  &  Co.  sent  to  the  defendant,  who  then  held 
the  150  bags  of  sugar  in  a  warehouse  at  Goole,  the  following  telegram: 
"  Transfer  to  order  of  Fletcher,  Leeds,  150  R.  A.  V."  The  defendant, 
on  the  same  day,  replied  by  letter,  in  which  he  said,  "  I  have  your 
telegram  to  transfer  the  balance  (150  bags)  to  Mr.  W.  Fletcher, 
Leeds,  at  whose  disposal  I  have  placed  the  sugar.     Please  note." 

On  the  same  day,  and  before  receipt  of  defendant's  letter.  Grey  & 
Co.  wrote  a  letter  to  the  defendant,  confirming  their  telegram. 

Subsequently,  Fletcher  negotiated  with  the  plaintiffs  to  sell  the 
sugar  to  them,  together  with  some  other  sugar  which  was  in  the  de- 
fendant's warehouse.  At  this  time  Fletcher  was  indebted  to  the 
plaintiifs  in  the  sum  of  £131,  for  which  he  had  given  a  cheque  which 
had  been  returned  dishonored;  and  as  Fletcher  required  to  be  paid 
in  cash,  the  plaintiffs,  before  concluding  any  contract  with  Fletcher, 
sent  to  the  defendant  inquiring  if  he  had  the  sugar,  proposed  to  be 
sold  by  Fletcher,  in  his  warehouse  to  Fletcher's  order.  To  this,  the 
defendant  replied  that  he  had ;  and  subsequently,  the  plaintiffs  not 
being  satisfied,  the  defendant  wrote  upon  a  memorandum  of  the 
parcels  of  sugar  held  to  Fletcher's  order  by  him :  "  I  hold  the  within 
at  your  order  and  disposal."  The  memorandum  was  then  sent  by  the 
defendant  to  the  plaintiffs.  Thereupon  the  plaintiffs  purchased  the 
sugar  of  Fletcher,  and  after  deducting  Fletcher's  indebtedness  to 
them,  handed  him  a  cheque  for  the  balance,  which  Fletcher  cashed  in 
due  course. 

Grey  &  Co.,  having  discovered  Fletchers  fraud,  notified  the  de- 
fendant to  withhold  the  150  bags  and  indemnified  him  for  so  doing. 
The  defendant  accordingly  refused  to  deliver  the  150  bags  to  the 
plaintiffs. 

At  the  trial,  before  Cave,  J.,  the  plaintiffs  had  a  verdict,  and  the 
defendant  appealed.^ 

Lord  Halsbury.  .  .  .  [His  Lordship  briefly  stated  the  facts,  and 
referred   to  the  letter  of  June   6,   from   Williams  to   Grey  &   Co., 

1  Further  details  of  the  transaction  between  Fletcher  and  the  plaintiffs,  mis-ins 
a  question  of  damages,  are  omitted. 


522  HENDERSON    &    CO,    V.    WILLIAMS.  [CHAP.    XIV. 

acknowledging  receipt  of  latter's  telegram,  and  the  letter  of  Grey  & 
Co.,  of  the  same  date,  to  Williams,  confirming  the  telegram.] 

Mr.  Williams  having  duly  carried  out  the  instructions  contained  in 
the  telegram  and  letter,  Mr.  Fletcher,  who  was  a  fraudulent  person, 
entered  into  negotiations  with  the  present  plaintiffs  for  the  purpose  of 
a  sale  of  the  sugar  to  them.  The  sale  was  effected  and  the  transaction 
concluded  in  a  manner  which  I  will  describe  presently. 

I  pause  here  to  consider  what  was  at  this  time  the  relative  situation 
of  the  parties.  Grey  &  Co.,  the  real  owners  of  the  goods,  had  placed 
with  full  powers  of  disposition  these  sugars  in  the  name  of  Mr. 
Fletcher.  If  the  question  now  to  be  determined  was  whether  or  not 
any  property  passed  under  these  circumstances  to  Mr.  Fletcher,  I 
should  say  that,  inasmuch  as  Fletcher  was  only  the  designated  con- 
signee and  not  a  person  purporting  to  enter  into  a  bargain  or  a  con- 
tract at  all,  no  such  property  would  pass  at  all ;  and  1  think  that  that 
view  would  be  in  accordance  with  the  decision  in  Kingsford  v.  Merry ,i 
with  respect  to  which  I  have  to  say  a  word  or  two  presently.  But 
that  is  not  the  position  in  which  I  regard  the  transaction  so  far.  It 
appears  to  me  that  quite  apart  from  any  contract  which  might  be 
affirmed  or  disaffirmed  afterwards,  the  question  here  is  whether  the 
true  owner  of  the  goods  has  so  invested  the  person  dealing  with  them 
with  the  indicia  of  property  as  that  when  an  innocent  person  enters 
into  a  negotiation  with  the  person  to  whom  these  things  have  been 
entrusted  with  the  indicia  of  property  the  true  owner  of  the  goods  can- 
not afterwards  complain  that  there  was  no  authority  to  make  such  a 
bargain.  .  .  . 

[His  Lordship  here  discussed  at  length  the  case  of  Kingsford  v. 
Merry,  1  H.  &  N.  503,  and  proceeded:] 

But  it  is  remarkable  to  observe  that  in  giving  that  judgment,  and 
upon  tlie  argument  in  that  case,  it  is  expressly  distinguished  from 
those  cases  in  which  a  person  has  given  the  indicia  of  title  to  another 
so  as  to  enable  him  to  pass  as  the  true  owner;  and  a  long  line  of  au- 
thorities, of  which  I  have  only  selected  two,  establishes  conclusively 
that  where  that  is  the  case  it  is  no  longer  a  question  of  affirming  or 
disaffirming  any  contract  between  the  owner  of  the  goods,  but  a  ques- 
tion whether  the  owner  of  the  goods  has  by  his  conduct  allowed  the 
person  who  has  either  cheated  him  or  to  whom  he  has  intrusted  goods 
to  hold  himself  out  as  the  owner  so  as  to  give  a  good  title  to  a  bona 
fide  purchaser  for  value.  In  Williams  v.  Barton,-  Best,  C.  J.,  after 
dealing  with  the  facts  of  that  case,  which  are  not  material  to  my  pur- 
pose, and  after  speaking  of  the  power  of  obtaining  a  good  title  in 
market  overt,  says:  "The  exception  in  our  law  proves  that  if  a  per- 
son ac(|iiir('s  the  possession  of  property  in  any  mode,  other  than  that 
of  sale  in  innrkcl  overt,  he  cannot  keep  it  against  the  owner;  it  proves 

»1   H.   &  N.  .''.O.^. 
*  8  UiDi;-  330. 


CHAP.   XIV.]  CONVERSION.  523 

at  the  same  time,  that,  as  commerce  is  now  carried  on,  the  purchaser 
or  pawnee  should  have  the  same  protection  against  him  who  permits 
another  to  deal  with  his  property,  as  if  it  were  his  own."  And  again, 
in  Dyer  v.  Pearson,^  Abbott,  C.  J.,  says,  referring  to  the  case  before 
him :  "  We  all  think  that  there  ought  to  be  a  new  trial  in  this  case. 
The  question  whicli  I  left  to  the  consideration  of  the  jury  does  not  ap- 
pear to  me  to  have  embraced  the  whole  case.  The  general  rule  of 
the  law  of  England  is,  that  a  man  who  has  no  autliority  to  sell,  can- 
not, by  making  a  sale,  transfer  the  property  to  another.  There  is  one 
exception  to  that  rule,  namely,  the  case  of  sales  in  market  overt.  This 
was  not  a  sale  in  market  overt  and  therefore  does  not  fall  within  the 
exception.  Now  this  being  the  rule  of  law,  I  ought  either  to  have  'told 
the  jury,  that  even  if  there  was  an  unsuspicious  purchase  by  the  de- 
fendants, yet  as  Smith  had  no  authority  to  sell,  they  should  find  their 
verdict  for  the  plaintiffs;  or  I  should  have  left  it  to  the  jury  to  say, 
whether  the  plaintiffs  had  by  their  own  conduct  enabled  Smith  to 
hold  himself  forth  to  the  world  as  having  not  the  possession  only,  but 
the  property;  for  if  the  real  owner  of  goods  suffer  another  to  have 
possession  of  his  property,  and  of  those  documents  which  are  the  in- 
dicia of  property,  then  perhaps,  a  sale  by  such  a  person  would  bind 
the  true  owner." 

Now,  I  have  thought  it  right  to  deal  here  as  if  the  only  parties  to 
this  question  were  the  true  owner  of  the  goods  and  the  purchaser  for 
value.  The  question,  of  course,  arises  here  in  a  different  form,  al- 
though perhaps  only  circuitously.  Here  the  warehouse-keeper  has 
been  induced  to  attorn  to  the  ownership  of  the  fraudulent  person 
Fletcher,  and  in  that  character  to  transfer  to  Fletcher  and  to  Fletcher's 
order  the  property  intrusted  to  his  charge;  and  I  am  of  opinion  that 
it  would  be  impossible  for  him  to  resist  an  action  by  the  person  to 
whose  title  he  has  attorned  if  no  other  question  existed  in  the  case. 

This  is  an  action  in  which  it  is  admitted  that  the  warehouse-keeper 
is  acting  under  the  indemnity  of  Grey  &  Co.,  and  I  have  thought  it 
right  to  trace  the  question  up  to  its  source,  and  to  treat  Grey  & 
Co.,  the  true  owners,  as  the  persons  who  are  the  practical  defend- 
ants in  this  case.  Treating  Grey  &  Co.  as  the  defendants  in  this 
case,  I  am  of  opinion  that  upon  these  facts  they  have  no  answer. 
The  real  truth  is  that  Grey  &  Co.  are  the  persons  who  have  permitted 
this  fraud  to  be  committed,  by  intrusting  the  goods  to  the  order  and 
disposition  of  Fletcher ;  and  apart  from  the  authorities  to  which  I  have 
already  referred,  I  think  that  it  is  not  undesirable  to  refer  to  an 
American  authority,  which  I  observe,  was  quoted  in  the  case  of  Kings- 
ford  V.  Merry,-  Root  v.  French,^  in  which,  in  the  Supreme  Court  of 
New  York,  Savage,  C.  J.,  makes  observations  which  seem  to  me  to  be 
well  worthy  of  consideration.    Speaking  of  a  bona  fide  purchaser  who 

1  3  B.  &  C.  38. 

»  1  H,  &  N.  503. 

»  13  Wend.  570.  and  see  Kent's  Comm.  ii.  514. 


524  ASHTON    V.    ALLEN.  [CHAP.    XIV. 

has  purchased  property  from  a  fraudulent  vendee  and  given  value  for 
it,  he  says:  "He  is  protected  in  doing  so  upon  the  principle  just 
stated,  that  when  one  of  two  innocent  persons  must  suffer  from  the 
fraud  of  a  third,  he  shall  suffer,  who,  by  his  indiscretion,  has  enabled 
such  third  person  to  commit  the  fraud.  A  contrary  principle  would 
endanger  the  security  of  commercial  transactions,  and  destroy  that 
confidence  upon  which  what  is  called  the  usual  course  of  trade  mate- 
rially rests." 

It  appears  to  me,  therefore,  that  when  once  the  correspondence  is 
looked  at  upon  which  these  goods  were  committed  to  Fletcher,  to  his 
order  and  disposition,  and  Fletcher  was  invested  with  a  full  power 
of  disposition,  it  is  impossible  to  argue  that  this  was  not  a  holding 
out,  by  the  true  owner  of  the  goods,  of  Fletcher  as  capable  of  giving 
a  good  title.  It  is  admitted  that  the  present  plaintiffs  dealt  bona  fide 
with  the  person  who  was  thus  in  the  complete  dominion  of  the  prop- 
erty in  question,  and  was,  under  these  circumstances,  and  from  this 
correspondence,  held  out  by  the  true  owners  of  the  goods  as  the  owner, 
and  with  whom  therefore  any  contract  made  innocently  by  a  bona 
fide  purchaser  for  value  would  be  protected. 

Lindley  and  A.  L.  Smith,  L.  JJ.,  delivered  concurring  opinions. 

Defendant's  appeal  dismissed. 


ASHTON  V.  ALLEN. 

Supreme  Court  of  New  Jersey,  November,  1903.    70  N.  J.  L.  117. 

The  case  is  stated  in  the  opinion. 

Garretson,  J.  This  is  an  appeal  by  the  plaintiff  from  a  judgment 
entered  in  the  District  Court  of  Trenton  in  favor  of  the  defendant. 

The  following  are  the  facts  agreed  upon  by  the  parties  to  this  suit : 

On  or  about  August  14th,  1901,  the  plaintiff  was  possessed  of  one 
hundred  and  fifty  pounds  of  oats,  valued  at  $G9 ;  that  some  person  to 
the  plaintiff  unknown,  representing  himself  as  the  agent  of  0.  0. 
Bowman,  or  of  0.  0.  Bowman  &  Son,  requested  the  plaintiff  to  de- 
liver the  oats  at  the  stable  of  the  said  Bowman,  saying  that  the  oats 
were  wanted  by  the  said  Bowman ;  that  the  said  unknown  person  also 
obtained  permission  from  the  said  Bowman's  servant  to  have  the  said 
oats  deposited  upon  his  premises;  that  the  said  plaintiff  thereupon 
delivered  said  oats  at  the  stable  of  the  said  Bowman,  depositing  the 
same  at  the  entrance  of  the  stable  or  stal)le-yard  of  the  said  Bow- 
man, where  the  man  delivering  the  same  was  requested  to  deposit  said 
oats.  The  said  oats  were  charged  upon  the  books  of  the  plaintiff  to 
the  said  Bowman;  that  the  said  plainliff  did  not  give  credit  to  said 
unknown  person  who  represented  himself  as  the  agent  of  the  said 


CHAP.    XIV.]  CONVERSION.  525 

Bowman,  ])ut  afterwards  the  said  unknown  person  procured  a  con- 
veyance and  carted  said  oats,  wliich  were  in  bags  of  said  plaintiff, 
marked  with  plaintiff's  name,  from  the  place  where  they  had  been  so 
deposited  by  the  driver  of  the  said  plaintiff'  and  took  them  to  the  de- 
fendants' place  of  business,  where  the  defendants,  in  the  usual  course 
of  business,  purchased  the  said  oats  from  the  said  unknown  person, 
who  represented  himself  as  the  owner  thereof  and  received  pay  for 
the  same  from  the  defendants,  and  the  said  defendants  received  pos- 
session and  retained  possession  of  the  said  oats. 

The  said  defendants  were  bona  fide  purchasers  of  said  oats  for  a 
valuable  consideration,  and  without  notice  of  any  fraud  or  misdoing 
upon  the  part  of  the  said  unknown  person  or  any  other  person  in 
connection  with  said  transaction. 

It  is  clear  from  the  foregoing  statement  of  facts  that  it  was  never 
the  intention  of  the  plaintiff  to  part  with  his  title  in  or  possession  of 
the  oats  or  to  deliver  them  to  the  unknown  person.  His  intention  was 
to  transfer  the  title  and  possession  to  Bowman.  It  is  not  one  of  those 
cases  in  which  the  owner  of  goods,  relying  upon  false  representations 
which  he  believed  to  be  true,  parts  with  the  title  and  possession  of  his 
goods,  intending  to  transfer  them  to  the  maker  of  the  false  representa- 
tions. In  such  cases  the  title  to  the  goods  actually  passes  out  of  the 
owner  and  he  intends  it  shall  so  pass  to  the  one  making  the  false  repre- 
sentations. In  such  case  he  may  avoid  his  contract,  but  if,  before  that 
is  done,  this  wrongdoer  has  parted  with  the  title  to  an  innocent  pur- 
chaser, the  original  owner  is  without  remedy  against  such  innocent 
purchaser. 

To  this  effect  are  the  cases  Rowley  v.  Bigelow,  12  Pick.  307,  and 
Hoffman  v.  Noble,  6  Met.  68. 

But  where  the  vendor  has  not  parted  with  the  title  to  the  one 
making  the  false  representations,  the  latter  has  no  title  to  transfer  — 
no  contract  of  sale  ever  existed  between  them. 

In  1  Benj.  Sales  (Corbin's  notes),  s.  648,  the  rule  is  stated  to  be: 
^'  Whenever  goods  are  obtained  from  their  owner  by  fraud,  we  must 
distinguish  whether  the  facts  show  a  sale  to  the  party  guilty  of  the 
fraud  or  a  mere  delivery  of  the  goods  into  his  possession  induced  by 
fraudulent  devices  on  his  part.  In  other  words,  we  must  ask  whether 
the  owner  intended  to  transfer  both  the  property  in,  and  the  possession 
of,  the  goods  to  the  person  guilty  of  the  fraud,  or  to  deliver  nothing 
more  than  the  bare  possession.  In  the  former  case  there  is  a  contract 
of  sale,  however  fraudulent  the  device,  and  the  property  passes;  but 
not  in  the  latter  case.  Section  649.  In  the  former  case  the  contract 
is  voidable  at  the  election  of  the  vendor,  not  void  ab  initio.  It  fol- 
lows, therefore,  that  the  vendor  may  affirm  and  enforce  it  or  may  re- 
scind it.  He  may  sue  in  assumpsit  for  the  price  and  this  affirms  the 
contract,  or  he  may  sue  in  trover  for  the  goods  or  their  value  and  this 
disaffirms  it.    But  in  the  meantime,  and  until  he  elects,  if  the  vendee 


526  DOXALD    V.    SUCKLING.  [CHAP.    XIV. 

transfer  the  goods  in  whole  or  in  part,  whether  the  transfer  be  of  a 
general  or  special  property  in  them,  to  an  innocent  third  person  for  a 
valuable  consideration,  the  rights  of  the  original  vendor  will  be  sub- 
ordinate to  those  of  such  innocent  third  person.  If,  on  the  contrary, 
the  intention  of  the  vendor  was  not  to  pass  the  property,  but  merely 
to  part  with  the  possession  of  the  goods,  there  is  no  sale,  and  he  who 
obtains  possession  by  fraud  can  convey  no  property  in  them  to  any 
third  person,  however  innocent,  for  no  property  has  passed  to  himself 
from  the  true  owner."  Cundy  v.  Lindsay,  L.  K.,  3  App.  Cas.  459; 
Hardman  v.  Booth,  1  Hurlst.  &  C.  803;  Higgins  v.  Barton,  26  L.  J. 
Exch.  342;  Dean  v.  Yates,  23  Ohio  St.  388;  Hamet  v.  Letcher,  37  Id. 
356;  Moody  v.  Blake,  117  Mass.  23;  Barker  v.  Dinsmore,  72  Pa.  427; 
Decan  v.  Shipper,  35  Id.  239. 

The  judgment  below  will  be  reversed  and  judgment  entered  for  the 
plaintiff  for  $69  and  costs. 


DONALD  V.  SUCKLING. 
Queen's  Bench  of  England,  July,  1866.     L.  R.  1  Q.  B.  585. 

Declaration.  That  the  defendant  detained  from  the  plaintiff  his 
securities  for  m.oney,  that  is  to  say,  four  debentures  of  the  British 
Slate  Company,  Limited,  for  £200  each,  and  the  plaintiff  claimed  a 
return  of  the  securities,  or  their  value,  and  £1000  for  their  deten- 
tion. 

Plea.  That  before  the  alleged  detention  the  plaintiff  deposited  the 
debentures  with  one  J.  A.  Simpson,  as  security  for  the  due  payment 
at  maturity  of  a  bill  of  exchange,  dated  25th  August,  1864,  payable 
six  months  after  date,  and  drawn  by  the  plaintiff,  and  accepted  by 
T.  Sanders,  and  indorsed  by  the  plaintiff  to  and  discounted  by  Simp- 
son, and  upon  the  agreement  then  come  to  between  the  plaintiff  and 
Simpson,  that  Simpson  should  have  full  power  to  sell  or  otherwise 
dispose  of  the  debentures  if  the  bill  was  not  paid  when  it  became  due. 
That  the  bill  had  not  been  paid  by  the  plaintiff,  nor  by  any  other  per- 
son, but  was  dishonored;  nor  was  it  paid  at  the  time  of  the  said  de- 
tention, or  at  the  commencement  of  this  suit;  and  that,  before  the  al- 
leged detention  and  the  commencement  of  this  suit,  Simpson  deposited 
the  debentures  with  the  defendant,  to  be  by  him  kept  as  a  security 
for  and  until  the  repayment  by  Simpson  to  the  defendant  of  certain 
sums  of  money  advanced  and  lent  by  the  defendant  to  Simpson  upon 
the  security  of  the  debentures,  and  the  defendant  had  and  received  the 
same  for  the  purpose  and  on  the  terms  aforesaid,  which  sums  of  money 
thence  hitlierto  have  been  and  remain  wholly  due  and  unpaid  to  the 
defendant;  whorcifore  the  defendant  detained  and  still  detains  the  de- 
bentures, wliicb  is  tlu!  alleged  detention. 

DemurrfT  Jind  joinder. 


CHAP,   XIV.]  CONVEESION".  527 

The  case  having  been  argued  in  Easter  Term  (April  27),  before 
Blackburn  and  Shee,  J  J.,  was  re-argued  in  Trinity  Term. 

Cur.  adv.  vult. 

Mellor,  J.  [after  stating  the  declaration  and  plea].  To  this  plea 
the  plaintiff  demurred;  and  upon  demurrer  I  think  that  we  must  as- 
sume that  the  pledging  of  the  debentures  by  Simpson  to  the  defendant 
took  place  before  the  default  was  made  by  the  plaintiff  in  payment 
of  the  bill  of  exchange  at  maturity,  and  that  we  must  also  assume  that 
the  money  for  which  the  debentures  were  pledged  by  Simpson,  as  a 
security  to  the  defendant,  was  of  larger  amount  than  the  amount  of 
the  bill  of  exchange  discounted  for  the  plaintiff  by  Simpson.  The 
question  thus  raised  by  this  plea  is,  whether  a  pawnee  of  debentures, 
deposited  with  him  as  a  security  for  the  due  payment  of  money  at  a 
certain  time,  does,  by  repledging  such  debentures  and  depositing  them 
with  a  third  person  as  a  security  for  a  larger  amount,  before  any  de- 
faulting payment  by  the  pawnor,  make  void  the  contract  upon  which 
they  were  deposited  with  the  pawnee,  so  as  to  vest  in  the  pawnor  an 
immediate  right  to  the  possession  thereof,  notwithstanding  that  the 
debt  due  by  him  to  the  original  pawnee  remains  unpaid.  If  the  affirm- 
ative of  this  proposition  be  maintained,  the  result  seems  prima  facie 
to  be  disproportionate  to  any  injury  which  the  pawnor  would  be  likely 
to  sustain  from  the  fact  of  his  debentures  having  been  repledged  be- 
fore default  made.  Still,  if  the  principles  of  law,  as  laid  down  in  de- 
cided cases,  satisfactorily  support  the  proposition  above  stated,  this 
court  must  give  effect  to  them.  There  is  a  well-recognized  distinc- 
tion between  a  lien  and  a  pledge,  as  regards  the  powers  of  a  person  en- 
titled to  a  lien  and  the  powers  of  the  person  who  holds  goods  upon 
an  agreement  of  deposit  by  way  of  pawn  or  pledge  for  the  due  pay- 
ment of  money.  In  the  case  of  simple  lien  there  can  be  no  power  of 
sale  or  disposition  of  the  goods  which  is  inconsistent  with  the  reten- 
tion of  the  possession  by  the  person  entitled  to  the  lien ;  whereas,  in 
the  case  of  a  pledge  or  pawn  of  goods  to  secure  the  payment  of 
money  at  a  certain  day,  on  default  by  the  pawnor  the  pawnee  may  sell 
the  goods  deposited  and  realize  the  amount,  and  become  a  trustee  for 
the  overplus  for  the  pawnor ;  or,  even  if  no  day  of  payment  be  named, 
he  may,  upon  waiting  a  reasonable  time,  and  taking  the  proper  steps, 
realize  his  debt  in  like  manner.  It  is  said  by  Mr.  Justice  Story  on 
Bailments,  tit.  Pawns  or  Pledges,  §  311,  that  "  the  foundation  of  the 
distinction  rests  in  this,  that  the  contract  of  pledge  carries  an  impli- 
cation that  the  security  shall  be  made  effectual  to  discharge  the  obli- 
gation; but,  in  the  case  of  a  lien,  nothing  is  supposed  to  be  given 
but  a  right  of  retention  or  detainer,  unless  imder  special  circum- 
stances." The  question  thus  arises.  Is  the  right  of  retention  in  case 
of  a  lien,  either  by  a  custom  or  contract,  otherwise  different  from  a 
deposit,  by  way  of  pledge  for  securing  the  due  payment  of  money, 
than  in  the  incidental  power  of  sale  in  the  latter  case  on  condition 


528  DONALD    V.    SUCKLING.  [CHAP.    XIV. 

broken?  In  other  words,  on  a  contract  of  pledge,  it  is  implied  that 
the  pledgee  shall  not  part  with  the  possession  of  the  thing  pledged 
until  default  in  payment;  and,  if  so,  is  that  of  the  essence  of  the 
contract,  so  that  the  violation  of  it  makes  void  the  contract  ? 

In  the  case  of  Legg  v.  Evans,  6  M,  &  W.  36,  41,  an  action  of  trover 
having  been  brought  against  the  defendants,  as  sheriffs  of  Middlesex, 
to  recover  the  value  of  some  pictures  and  picture-frames,  the  defend- 
ants justified  under  an  execution  against  the  goods  and  chattels  of  the 
plaintiff,  to  which  the  plaintiff  replied  setting  up  a  lien  in  respect  of 
work  done  upon  such  goods  and  chattels,  which  had  been  delivered  to 
him  in  the  way  of  his  trade  by  one  Williams,  and  further  set  up  an 
agreement  between  the  plaintiff  and  Williams  that  the  plaintiff  should 
draw  and  indorse  certain  bills  of  exchange  for  the  use  of  Williams, 
and  should  have  a  right  to  hold  the  said  goods  for  securing  the  pay- 
ment by  Williams  of  the  amount  of  the  said  bills  of  exchange;  and 
he  alleged  that  the  said  money  and  bills  of  exchange  then  remained 
wholly  unpaid.  The  Court  of  Exchequer  held,  on  demurrer  to  the 
replication,  that  it  was  a  good  answer  to  the  plea;  and  Parke,  B.,  is 
reported  to  have  said :  "  If  we  consider  the  nature  of  a  lien  and  the 
right  which  it  confers,  it  will  be  evident  that  it  cannot  form  the  sub- 
ject-matter of  a  sale.  A  lien  is  a  personal  right  which  cannot  be 
parted  with,  and  continues  only  so  long  as  the  possessor  holds  the 
goods.  It  is  clear,  therefore,  that  the  sheriff  cannot  sell  an  interest 
of  this  description,  which  is  a  personal  interest  in  the  goods."  And 
farther  on  he  said,  "  Here  the  interest  cannot  be  transferred  to  any 
other  individual;  it  continues  only  as  long  as  the  holder  keeps  pos- 
session of  the  subject-matter  of  the  lien,  either  by  himself  or  his  serv- 
ant." In  that  case  there  was  superadded  to  the  lien  in  respect  of 
work  done  an' agreement  that  the  person  entitled  to  the  lien  should 
have  a  right  to  hold  the  said  goods  and  chattels  for  securing  the  pay- 
ment of  the  bills  of  exchange  therein  mentioned,  and  which  then  re- 
mained wholly  unpaid.  That  case  was  treated  as  a  simple  case  of  lien 
or  right  "  to  hold  "  to  secure  the  payment,  not  only  of  the  amount  due 
for  work  done  on  the  goods  by  Williams,  but  also  of  the  bills  drawn 
and  indorsed  by  him.  It  is,  therefore,  an  authority  to  the  effect  that  in 
the  case  of  lien,  even  to  secure  payment  of  money  advanced,  there  is 
no  implication  of  any  power  to  sell  or  otherwise  dispose  of  the  subject- 
matter  of  the  lien,  because  retention  of  possession  by  the  party  entitled 
to  the  lien  is  an  essential  ingredient  in  it. 

It  appears,  therefore,  that  there  is  a  real  distinction  between  a  de- 
posit by  way  of  pledge  for  securing  the  payment  of  money,  and  a 
right  to  hold  by  way  of  lien  to  secure  the  same  object.  In  Pothonier 
V.  Dawson,  Holt,  N.  P.  at  p.  385,  cited  in  argument  in  Legg  v.  Evans, 
f)  M.  &  W.  at  p.  40,  r.ibbs,  C.  J.,  said,  "  IJndonbtodly,  as  a  general 
proposition,  a  right  of  lien  gives  no  right  to  sell  the  goods.  But  when 
goods  arc  deposited  by  way  of  security,  to  iiulciimify  a  party  against  a 


CHAP.    XIV.]  CONVERSION.  529 

loan  of  money,  it  is  more  than  a  pledge.  [Quajre,  whether  "  pledge  " 
should  not  be  read  "  lien."]  The  lender's  rights  are  more  extensive 
than  such  as  accrue  under  an  ordinary  lien  in  the  way  of  trade." 

It  appears  to  me  tliat  considerable  confusion  has  been  introduced 
into  this  subject  by  the  somewhat  indiscriminate  use  of  the  words 
"  special  property,"  as  alike  applicable  to  the  right  of  personal  reten- 
tion in  case  of  a  lien,  and  the  actual  interest  in  the  goods  created  by 
the  contract  of  pledge  to  secure  the  payment  of  money.  In  Legg  v. 
Evans,  6  M.  &  W.  at  p.  42,  the  nature  of  a  lien  is  defined  to  be  a 
"  personal  right  which  cannot  be  parted  with ; "  but  "  the  contract  of 
pledge  carries  an  implication  that  the  security  shall  be  made  effectual 
to  discharge  the  obligation."  Story  on  Bailments,  §  311.  In  each 
case  the  general  property  remains  in  the  pawnor;  but  the  question  is 
as  to  the  nature  and  extent  of  the  interest  or  special  property  passing 
to  the  bailee  in  the  two  cases.  Mr.  Justice  Story,  in  his  Treatise  on 
Bailments,  §  324,  thus  describes  the  right  and  interest  of  the  pawnee : 
"  He  may,  by  the  common  law,  deliver  over  the  pawn  into  the  hands 
of  a  stranger  for  safe  custody,  without  consideration,  or  he  may  sell 
or  assign  all  his  interest  in  the  pawn,  or  he  may  convey  the  same 
interest  conditionally,  by  way  of  pawn,  to  another  person,  without  in 
either  case  destroying  or  invalidating  his  security;  but  if  the  pawnee 
should  undertake  to  pledge  the  property  (not  being  negotiable  securi- 
ties) for  a  debt  beyond  his  own,  or  to  make  a  transfer  thereof  to  his 
own  creditor,  as  if  he  were  the  absolute  owner,  it  is  clear  that  in  such 
a  case  he  would  be  guilty  of  a  breach  of  trust,  and  his  creditor  would 
acquire  no  title  beyond  that  held  by  the  pawnee.  The  only  question 
is,  whether  the  creditor  should  be  entitled  to  retain  the  pledge  until 
the  original  debt  was  discharged,  or  whether  the  owner  might  recover 
the  pledge  in  the  same  manner  as  in  the  case  of  a  naked  tort,  Avithout 
any  qualified  right  in  the  first  pawnee." 

In  M'Combie  v.  Davies,  7  East,  5  (see  pp.  6  and  7),  it  appeared 
that  a  broker  had  for  a  debt  of  his  own  pledged  with  the  defendant 
certain  tobacco  of  his  principals,  upon  which  he  had  a  lien ;  and  in  an 
action  brought  by  the  principal  against  the  defendant  in  trover  for 
the  tobacco.  Lord  Ellenborough  being  of  opinion  "  that  the  lien  was 
personal,  and  could  not  be  transferred  by  the  tortious  act  of  the 
broker  pledging  the  goods  of  his  principal,"  the  plaintiff  obtained  a 
verdict;  and  upon  motion  for  a  new  trial  Lord  Ellenborough  said  that 
"  nothing  could  be  clearer  than  that  liens  were  personal,  and  could 
not  be  transferred  to  third  persons  by  any  tortious  pledge  of  the  prin- 
cipal's goods ; "  but  he  afterwards  added  "  that  he  would  have  it  fully 
understood  that  his  observations  were  applied  to  a  tortious  transfer  of 
the  goods  of  the  principal  by  the  broker  undertaking  to  pledge  them 
as  his  own,  and  not  to  the  case  of  one  who,  intending  to  give  a  se- 
curity to  another  to  the  extent  of  his  lien,  delivers  over  the  actual 
possession  of  the  goods  on  which  he  has  the  lien  to  that  other,  with 


530  DONALD    V.    SUCKLING.  [CHAP.    XIV. 

notice  of  his  lien,  and  appoints  that  other  as  his  servant  to  keep  pos- 
session of  the  goods  for  him." 

It  would  therefore  seem  that  in  the  case  of  a  broker  or  factor  for 
sale,  before  the  Factors  Acts,  although  he  had  no  power  to  pledge  his 
principal's  goods,  except  to  the  extent  of  his  own  lien,  with  notice 
of  the  extent  of  his  interest,  yet  where  he  pledged  the  goods  on  which 
he  had  a  lien  tortiousl}-,  neither  the  factor  nor  his  pawnee  could  re- 
tain them  even  for  the  payment  of  the  amount  of  the  original  lien. 
The  case  of  M'Combie  v.  Davies,  7  East,  5  (see  pp.  6  and  7),  shows 
that  the  factor's  or  broker's  lien,  although  simply  a  right  to  retain 
possession  as  between  him  and  his  principal,  might  be  transferred  and 
made  a  security  to  a  third  person,  provided  he  professed  to  assign 
it  only  as  a  security  to  the  like  amount  as  that  due  to  himself.  Still 
the  character  of  the  transaction  is  that  of  lien,  and  not  of  deposit,  by 
way  of  pledge;  and  although  the  goods  were  intrusted  to  the  broker 
for  sale,  and  up  to  the  time  of  sale  remained  in  his  hands  upon  a 
personal  right  to  retain  them  for  advances,  yet  he  could  not  pledge 
them;  and,  if  he  did,  the  act  was  an  essential  violation  of  the  rela- 
tion betwixt  him  and  his  principal,  and  entitled  the  latter  at  once  to 
the  recovery  of  the  value  of  the  goods  in  trover.  "  But  the  relation 
of  principal  and  factor,  where  money  has  been  advanced  on  goods 
consigned  for  sale,  is  not  that  of  pawnor  and  pawnee,"  as  was  said 
by  the  court  in  Smart  v.  Sandars,  3  C.  B.  at  pp.  400,  401;  and  see 
s.  c.  after  amendment  of  pleadings,  5  C.  B.  at  p.  917. 

There  would  therefore  appear  to  be  some  real  difference  in  the  inci- 
dents between  a  simple  lien,  like  that  in  Legg  v.  Evans,  6  M.  &  W.  36, 
and  the  lien  of  a  broker  or  factor  before  the  Factors  Act,  and  the 
case  of  a  deposit  by  way  of  pledge  to  secure  the  repayment  of  money, 
which  latter  more  nearly  resembles  an  ordinary  mortgage.  Notes  to 
Coggs  V.  Bernard,  1  Smith's  L.  C.  194  (5th  ed.).  A  lien,  as  we  have 
seen,  gives  only  a  personal  right  to  retain  possession.  A  factor's  or 
broker's  lien  was  apparently  attended  with  the  additional  incident, 
that  to  the  extent  of  his  lien  he  might  transfer  even  the  possession  of 
the  subject-matter  of  the  lien  to  a  third  person,  "  appointing  him  as 
his  servant  to  keep  possession  for  him."  In  a  contract  of  pledge  for 
securing  the  -payment  of  money,  we  have  seen  that  the  pawnee  may 
sell  and  transfer  the  thing  pledged  on  condition  broken;  but  what  im- 
plied condition  is  there  that  the  pledgee  shall  not  in  the  mean  time 
part  with  the  possession  thereof  to  the  extent  of  his  interest?  It  may 
be  that  upon  a  deposit  by  way  of  pledge  the  express  contract  between 
the  parties  may  operate  so  as  to  make  a  parting  with  the  possession, 
even  to  the  extent  of  his  interest,  before  condition  broken,  so  essen- 
tial a  violation  of  it  as  to  revest  the  right  of  possession  in  the  pawnor; 
but,  in  the  absence  of  such  terms,  why  are  they  to  be  implied?  There 
may  possibly  be  cas(!s  in  which  the  very  nature  of  the  thing  deposited 
might  induce  a  jury  to  believie  and  find  that  it  was  deposited  on  the 


CHAP.    XIV.]  CON  VERSION.  531 

understanding  that  the  possession  should  not  be  parted  with;  but  in 
the  ease  before  us,  we  have  only  to  deal  with  the  agreement  which  is 
stated  in  the  plea.  The  object  of  the  deposit  is  to  secure  the  repay- 
ment of  a  loan,  and  the  effect  is  to  create  an  interest  and  a  right  of 
property  in  the  pawnee,  to  the  extent  of  the  loan,  in  the  goods  de- 
posited; but  what  is  the  authority  for  saying  that  until  condition 
broken  the  pawnee  has  only  a  personal  right  to  retain  the  goods  in 
his  own  possession  ? 

In  Johnson  v.  Stear,  15  C.  B.  n.  s.  330,  33  L.  J.  C.  P.  130,  one 
Gumming,  a  bankrupt,  had  deposited  with  the  defendant  243  cases 
of  brandy,  to  be  held  by  him  as  a  security  for  the  payment  of  an  ac- 
ceptance of  the  bankrupt  for  £62  10^".,  discounted  by  the  defendant, 
and  which  would  become  due  January  29,  1863 ;  and  in  case  such  ac- 
ceptance was  not  paid  at  maturity,  the  defendant  was  to  be  at  liberty 
to  sell  the  brandy,  and  apply  the  proceeds  in  payment  of  the  accept- 
ance. On  the  28th  January,  before  the  acceptance  became  due,  the 
defendant  contracted  to  sell  the  brandy  to  a  third  person,  and  on  the 
29th  delivered  to  him  the  dock  warrant,  and  on  the  30th  such  third 
person  obtained  actual  possession  of  the  brandy.  In  an  action  of 
trover,  brought  by  the  assignee  of  the  bankrupt,  the  Court  of  Com- 
mon Pleas  held  that  the  plaintiff  was  entitled  to  recover,  on  the 
ground  that  the  defendant  wrongfully  assumed  to  be  owner  in  sell- 
ing; and  although  that  alone  might  not  be  a  conversion,  yet,  by  de- 
livering over  the  dock  warrant  to  the  vendee  in  pursuance  of  such 
sale,  he  "  interfered  with  the  right  which  the  bankrupt  had  on  the 
29th,  if  he  repaid  the  loan;"  but  the  majority  of  the  court  (Erie, 
C.  J.,  Byles  and  Keating,  JJ.)  held,  that  the  plaintiff  was  only  en- 
titled to  nominal  damages,  on  the  express  ground  that  the  deposit 
of  the  goods  in  question  with  the  defendant  to  secure  repayment  of 
a  loan  to  him  on  a  given  day,  with  a  power  to  sell  in  case  of  default 
on  that  day,  created  "  an  interest  and  a  right  of  property  in  the  goods, 
which  was  more  than  a  mere  lien;  and  the  wrongful  act  of  the  pawnee 
did  not  annihilate  the  contract  between  the  parties  nor  the  interest 
of  the  pawnee  in  the  goods  under  that  contract."  See  15  C.  B.  n.  s. 
at  pp.  334,  335;  33  L.  J.  C.  P.  at  p.  131.  From  that  view  of  the 
law,  as  applied  to  the  circumstances  of  that  case,  Mr.  Justice  Williams 
dissented,  on  the  ground  "  that  the  bailment  was  terminated  by  the 
sale  before  the  stipulated  time,  and  consequently  that  the  title  of  the 
plaintiff  to  the  goods  became  as  free  as  if  the  bailment  had  never 
taken  place."  See  15  C.  B.  n.  s.  at  p.  340;  33  L.  J.  C.  P.  at  p.  134. 
Although  the  dissent  of  that  most  learned  judge  diminishes  the  au- 
thority of  that  case  as  a  decision  on  the  point,  and  although  it  may 
be  open  to  doubt  whether  in  an  action  of  trover  the  defendant  ought 
not  to  have  succeeded  on  the  plea  of  not  possessed,  and  whether  the 
plaintiff's  only  remedy  for  damages  was  not  by  action  on  the  con- 
tract, I  am,  nevertheless,  of  opinion  that  the  substantial  ground  upon 


532  DONALD   V.   SUCKLING.  [CHAP.    XIV. 

which  the  majority  of  the  court  proceeded,  viz.,  that  the  "  act  of  the 
pawnee  did  not  annihilate  the  contract,  nor  the  interest  of  the  pawnee 
in  the  goods,"  is  the  more  consistent  with  the  nature  and  incidents 
of  a  deposit  by  way  of  pledge.  I  think  that  when  the  true  distinction 
between  the  case  of  a  deposit,  by  way  of  pledge,  of  goods,  for  securing 
the  payment  of  money,  and  all  cases  of  lien,  correctly  so  described,  is 
considered,  it  will  be  seen  that  in  the  former  there  is  no  implication, 
in  general,  of  a  contract  by  the  pledgee  to  retain  the  personal  posses- 
sion of  the  goods  deposited;  and  I  think  that,  although  he  cannot 
confer  upon  any  third  person  a  better  title  or  a  greater  interest  than 
he  possesses,  yet  if,  nevertheless,  he  does  pledge  the  goods  to  a  third 
person  for  a  greater  interest  than  he  possesses,  such  an  act  does  not 
annihUate  the  contract  of  pledge  between  himself  and  the  pawnor, 
but  that  the  transaction  is  simply  inoperative  as  against  the  original 
pawnor,  irho  upon  tender  of  the  sum  secured  immediately  becomes 
entitled  to  the  possession  of  the  goods,  and  can  recover  in  an  action 
for  any  special  damage  which  he  may  have  sustained  by  reason  of  the 
act  of  the  pawnee  in  repledging  the  goods;  and  I  think  that  such  is 
the  true  effect  of  Lord  Holt's  definition  of  a  "  vadium  or  pawn  "  in 
Coggs  V.  Bernard,  2  Ld.  Eaym.  at  pp.  916,  917.  Although  he  was  of 
opinion  that  the  pawnee  could  in  no  case  use  the  pledge  if  it  would 
thereby  be  damaged,  and  must  use  due  diligence  in  the  keeping  of  it, 
and  says  that  the  creditor  is  bound  to  restore  the  pledge  upon  pay- 
ment of  the  debt,  because,  by  detaining  it  after  the  tender  of  thie 
money,  he  is  a  wrong-doer,  his  special  property  being  determined; 
yet  he  nowhere  says  that  the  misuse  or  abuse  of  the  pledge  before 
payment  or  tender  anniliilates  the  contract  upon  which  the  deposit 
took  place. 

If  the  true  distinction  between  cases  of  lien  and  cases  of  deposit 
by  way  of  pledge  be  kept  in  mind,  it  will,  I  think,  suffice  to  determine 
this  case  in  favor  of  the  defendant,  seeing  that  no  tender  of  the  sum 
secured  by  the  original  deposit  is  alleged  to  have  been  made  by  the 
plaintiff;  and,  considering  the  nature  of  the  things  deposited,  I  think 
that  the  plaintiff'  can  have  sustained  no  real  damage  by  the  repledg- 
ing of  them,  and  that  he  cannot  successfully  claim  the  immediate 
right  to  the  possession  of  the  debentures  in  question. 

I  am,  therefore,  of  opinion  that  our  judgment  should  be  for  the 
defendant. 

Judgment  for  the  defendant. 

[CocKiJURN,  C.  J.  concurred  that  judgment  should  be  for  the  de- 
fendant, upon  the  ground  that  the  act  of  the  pledgee  in  repledging  did 
not  put  an  end  to  the  contract  of  pledge,  so  as  to  entitle  the  pledgor 
to  l)ring  an  action  of  detinue,  tliough  he  thought  tlio  transfer  of  the 
thing  pledged  amounted  to  a  breach  of  contract,  upon  which  the 
owner  might  bring  an  action.  He  hesitated  to  lay  down  the  proposi- 
tion that  the  pledgee  has  a  right  to  transfer  his  interest  to  a  third 


CHAP.    XIV.]  CONVERSION.  533 

person,  saying  "  Such  a  right  in  the  pawnee  seems  quite  inconsistent 
with  the  undoubted  right  of  the  pledgor  to  have  the  thing  pledged 
returned  to  him  immediately  upon  tender  of  the  amount  for  which 
the  pledge  was  given." 

Blackburn,  J.,  concurred  upon  the  ground  that  in  detinue,  the 
plaintiff's  claim  is  based  upon  his  right  to  have  the  chattel  itself  re- 
turned to  him,  and  that  the  transfer  by  the  pledgee  to  a  subpledgee 
did  not  put  an  end  to  the  contract  of  pledge,  whatever  might  have 
been  the  plaintiff's  right  to  maintain  an  action  for  damage  sustained, 
if  any. 

Shee,  J.,  dissented,  holding  that  Simpson's  act  in  pledging  the 
debentures  for  a  larger  debt  than  his  to  the  plaintiff,  was  an  abuse 
of  the  pledge  and  forfeited  it;  that  is,  that  the  pledge  was  thereby 
terminated,  and  the  plaintiff  acquired  an  immediate  right  to  repos- 
sess himself.] 


GUELEY   V.    AEMSTEAD. 
Supreme  Court  of  Massachusetts,  January,  1889.     148  Mass.  267. 

Tort  for  the  conversion  of  certain  articles  of  personal  property 
belonging  to  the  plaintiff.  The  case  was  submitted  to  the  Superior 
Court,  and,  after  Judgment  for  the  defendant,  to  this  court,  on  appeal, 
on  an  agreed  statement  of  facts,  which,  so  far  as  material,  appears 
in  the  opinion. 

Devens,  J.  The  defendant,  who  was  a  job  teamster,  removed  the 
goods  alleged  to  have  been  by  him  converted  from  a  room  in  the 
dwelling-house  of  one  Wliittier  to  the  store  of  one  Davis,  and  there 
delivered  them  to  Whittier,  by  whose  direction  he  had  acted.  Al- 
though the  goods  were  in  the  house  of  Whittier,  they  were  in  a  room 
hired  by  the  plaintiff  from  him.  The  contract  between  them  was  one 
for  rent,  and  not  for  storage,  Whittier  reserving  no  control  over  the 
room.  It  was,  however,  neither  locked  nor  fastened,  although  no 
goods  were  in  it  except  those  of  the  plaintiff.  In  all  that  he  did  the 
defendant  acted  in  good  faith,  without  any  intention  of  depriving 
the  rightful  owner  of  her  property,  and  in  ignorance  of  the  fact  that 
the  plaintiff  was  such  owner,  neither  asserting  title  in  himself  nor 
denying  title  to  any  other,  nor  exercising  any  act  of  o'WTiership  ex- 
cept by  the  removal  above  stated. 

The  legal  possession  of  the  goods  was,  under  these  circumstances, 
undoubtedly  in  the  plaintiff,  and  as  they  were  in  the  room  hired  by 
her,  the  actual  possession  was  also  hers.  The  apparent  control  of 
them  was,  however,  in  Whittier,  as  they  were  in  his  house,  and  he 


534  GURLEY  V.    ARMSTEAD.  [CHAP.  XIV. 

had  further  the  present  capacity  to  take  actual  physical  possession, 
as  the  room  in  which  they  were  was  neither  locked  nor  fastened. 

It  is  conceded  that  whoever  receives  goods  from  one  in  actual,  al- 
though illegal,  possession  thereof,  and  restores  the  goods  to  such  per- 
son, is  not  liable  for  a  conversion  by  reason  of  having  transported 
them.  Strickland  v.  Barrett,  20  Pick.  415.  Leonard  v.  Tidd,  3  Met. 
6.  And  this  would  be  so  apparently,  even  if  the  goods  thus  received 
were  restored  to  the  wrongful  possessor,  after  notice  of  the  claim  of 
the  true  owner.  Loring  v.  Mulcahy,  3  Allen,  575.  Metcalf  v.  Mc- 
Laughlin, 123  Mass.  84. 

Upon  the  precise  question  raised,  we  have  found  no  direct  author- 
ity, nor  was  any  cited  in  the  argument;  but  the  principle  on  which 
the  decisions  above  cited  rest  is  not  unreasonably  extended  when  it  is 
applied  to  the  circumstances  of  the  case  at  bar.  The  act  of  removing 
goods  by  direction  of  the  wrongful  possessor  of  them  is  an  act  in 
derogation  of  the  title  of  the  rightful  owner ;  but  the  party  doing  this 
honestly  is  protected  because  from  such  actual  possession  he  is  justi- 
fied in  believing  the  possessor  to  be  the  true  owner.  He  does  no  more 
than  such  possessor  might  himself  have  done  by  virtue  of  his  wrong- 
ful possession. 

The  defendant  was  a  job  teamster,  and  thus  in  a  small  way  a  com- 
mon carrier  of  such  wares  and  merchandise  as  could  appropriately  be 
transported  in  his  team  or  wagon.  He  exercised  an  employment  of 
such  a  character  that  he  could  not  legally  refuse  to  transport  prop- 
erty such  as  he  usually  carried,  which  was  tendered  to  him  at  a  suit- 
able time  and  place  with  the  offer  of  a  reasonable  compensation.  If 
he  holds  himself  out  as  a  common  carrier,  he  must  exercise  his  calling 
upon  proper  request  and  under  proper  circumstances.  Buckland  v. 
Adams  Express  Co.,  97  Mass.  124.  Judson  v.  Western  Railroad,  6 
Allen,  486.  His  means  of  ascertaining  the  true  title  of  the  freight 
confided  to  him  are  of  necessity  limited.  He  must  judge  of  this  as 
it  is  fairly  made  to  appear.  If  Whittier  had  actually  gone  into  the 
room,  as  he  might  readily  have  done,  and  taken  physical  possession 
of  the  goods,  the  defendant  upon  well  established  authority  would 
have  been  justified  in  obeying  the  order,  and  transporting  the  goods 
to  Whittier  at  another  place;  and  he  should  not  be  the  less  justified 
where  Whittier,  in  apparent  control  of  the  goods  in  his  own  house, 
and  capable  of  immediately  taking  them  into  his  actual  custody  by 
entering  the  room  through  the  unlocked  door,  has  directed  the 
removal. 

If  a  person  standing  near  and  in  sight  of  a  bale  of  goods  lying  on 
the  sidewalk  belonging  to  another,  and  thus  in  the  legal  possession  of 
such  other,  is  able  at  once  to  possess  himself  of  it  actually,  although 
illegally,  and  directs  a  carrier  to  remove  it  and  deliver  it  to  him  at 
another  f)lace,  compliance  with  tliis  order  in  good  laith  cannot  be 
treated  as  a  conversion ;   and  apparent  control,  accompanied  with  the 


CHAP.    XIV.]  CONVERSION.  535 

then  present  capacity  of  investing  himself  with  actual  physical  pos- 
session, must  be  equivalent  to  illegal  possession  in  protecting  a  carrier 
who  obeys  the  order  of  one  having  such  control. 

Judgment  for  the  defendant. 


EOSUM  V.  HODGES. 

Supreme  Court  of  South  Dakota,  November,  1890.     1  S.  Dak.  308. 

Action  for  conversion   of  certain  personal  property. 

The  facts  are  stated  in  the  opinion.  There  was  a  judgment  for  the 
plaintiff,  and  the  defendant  appealed. 

Kellam,  J.  Eespondent  was  the  owner  of  certain  flaxseed  in  his 
granary,  on  his  farm  in  Minnehaha  county.  During  his  absence 
from  home,  and  without  his  knowledge  or  consent,  Gerde,  his  hired 
man,  hauled  to  appellants'  elevator,  and  sold  and  delivered  to  appel- 
lants, a  quantity  of  such  flax,  receiving  the  pay  therefor.  Appellants 
bought  innocently,  supposing  Gerde  had  a  right  so  to  sell.  Immedi- 
ately after  the  sale,  Gerde  absconded  with  the  proceeds,  with  the 
exception  of  a  small  amount,  noticed  hereafter.  The  action  was 
brought  against  appellants  for  the  conversion  of  the  flax.  Eespondent 
had  judgment,  and  appellants  appeal. 

The  next  assignment  alleges  error  in  the  charge  of  the  court  upon 
the  question  of  authority  of  Gerde  to  sell  the  flax.  We  do  not  stop 
now  to  examine  this  instruction  in  respect  to  the  error  alleged, 
for  the  reason  that  there  is  no  evidence  in  the  case  tending  in  any 
degree  to  show  authority,  either  express  or  implied,  in  Gerde  to  sell 
the  flax.  If  the  jury  had  so  found  under  any  instruction,  we  think 
it  would  have  been  the  duty  of  the  court  to  set  such  verdict  aside. 

The  next  and  last  assignment  is  that  the  court  erred  in  charging 
the  jury  that  no  demand  was  necessary  before  bringing  the  action. 
The  question  as  to  whether,  without  previous  demand,  an  action  for 
the  conversion  of  personal  property  can  be  maintained  against  an 
innocent  purchaser  of  such  property  from  one  who  tortiously  obtained 
the  same  from  the  owner,  has  been  and  still  is  the  subject  of  frequent 
and  elaborate  discussion  in  the  courts.  In  Stanley  v.  Gaylord,  1  Gush. 
536,  the  question  was  examined  at  great  length,  both  upon  principle 
and  as  affected  by  the  rules  applicable  to  and  distinguishing  the 
actions  of  trespass,  trover  and  replevin,  and  the  court  concludes 
(Wilde,  J.,  dissenting)  that  trespass  may  be  maintained  without 
demand.  In  Hyde  v.  Noble,  13  N.  H.  494,  it  was  held  that  the  pur- 
chase of  property  from  one  who  had  no  power  to  sell,  when  the  pur- 
chaser took  a  delivery  of  it,  and  retained  possession  under  the  sale, 
was  in  itself  a  conversion  by  the  purchaser,  sufficient  to  enable  the 


536  EOSUM    V.    HODGES.  [CHAP.    XIV. 

owner  to  maintain  trover  against  him  without  a  previous  demand.  In 
Trudo  V.  Anderson,  10  Mich.  357,  the  court  held  that,  where  one's 
property  is  disposed  of  without  authority  by  the  person  having  it  in 
charge,  the  owner  may  bring  replevin  therefor  without  a  previous 
demand,  and  he  may  do  this  notwithstanding  the  property  is  in  the 
hands  of  one  who  has  bought  in  good  faith,  and  without  notice  of 
the  title  of  the  real  owner;  and,  after  discussing  at  some  length  the 
necessity  of  a  previous  demand  in  such  a  case,  the  court  says :  "  We 
do  not  think  the  question  of  intent  or  of  good  faith  in  a  party  re- 
ceiving possession  from  a  w^rongful  taker  in  such  cases,  and  where 
the  owner  has  been  guilty  of  no  wrong  or  negligence,  can  have  any 
bearing  upon  the  right  of  recovery  in  a  civil  action  for  the  property 
or  its  value,  and  such  is  clearly  the  weight  of  authority  both  in 
England  and  in  the  United  States."  And  this  doctrine  was  reiter- 
ated in  Ballon  v.  O'Brien,  20  Mich.  304.  It  is  also  so  held  in 
Galvin  v.  Bacon,  11  Me.  28;  Mining  Co.  v.  Tritle,  4  Nev.  493;  Clark 
V.  Lewis,  35  111.  417;  Shoemaker  v.  Simpson,  16  Kan.  43;  Eldred  v. 
Oconto  Co.,  33  Wis.  133;  Smith  v.  McLean,  24  Iowa,  322.  In  an 
early  case  in  New  York,  Storm  v.  Livingston,  6  Johns.  44,  a  con- 
trary doctrine  was  announced,  and  has  been  adhered  to  in  that  state.^ 
In  Barrett  v.  Warren,  3  Hill,  348,  Cowen,  J.,  referring  to  the  rule 
announced  in  Storm  v.  Livingston,  and  followed  in  later  cases  in 
New  York,  used  the  following  significant  language :  "  I  will  not,  how- 
ever, deny  .that  an  exception  in  favor  of  the  taker,  where  he  is  a  bona 
fide  purchaser  from  the  wrong-doer,  has  found  its  way  into  the  books ; 
nor  that,  however  discordant  it  be  with  established  principles,  it  may, 
at  least  in  this  state,  have  become  too  inveterate  to  be  displaced." 
The  rule  adopted  in  New  York  seems  also  to  have  been  followed  in 
Indiana.  See  Wood  v.  Cohen,  6  Ind.  455,  and  Conner  v.  Comstock, 
17  Ind.  90.  In  Eldred  v.  Oconto  Co.,  supra,  the  supreme  court  of 
Wisconsin,  after  noticing  the  fact  that  the  New  York  courts  have 
uniformly  held  as  above  indicated,  says:  "But  we  find  a  decided 
weight  of  authority  the  other  way,  and  we  are  satisfied  that  the  New 
York  rule  is  not  sound  in  principle."  Upon  principle,  it  is  not  easy 
to  give  a  satisfactory  reason  why  the  true  owner,  who  has  been  guilty 
of  no  wrong  or  negligence,  should  be  prejudiced  by  a  transaction  be- 
tween the  wrongful  taker  of  his  property  and  a  third  person,  or  how 
such  a  transaction  can  impose  upon  him  a  new  obligation.  Having 
been  guilty  of  no  act  impairing,  or  in  any  manner  qualifying,  cither 
his  right  of  property  or  his  right  of  immediate  possession,  he  may 
assert  such  right  whenever  and  wherever  he  finds  his  property.  The 
wrongful  taker  had  no  rightful  possession  against  the  true  owner,  and 
ho  could  convey  none  to  another.  In  this  case  the  respondent  was 
df'privod  of  the  possession  of  his  property  by  the  tortious,  if  not 
felonious,   act  of  Gerde,  and  appellants'  claim  to  the  same  comes 

» But  cf.  I'eaae  v.  Smith,  61  N.  Y.  477. 


CHAP.    XIV.]  CONVERSION.  537 

through  such  tortious  taking.  The  taking  did  not  deprive  respondent 
of  his  right  in  and  to  the  property  so  taken,  neither  could  its  sale 
by  the  wrongful  taker.  It  remained  tlic  absolute  property  of  respond- 
ent, as  much  after  as  before  the  sale.  The  possession  of  appellants 
being  wrongful  as  against  respondent,  the  true  owner,  no  previous 
demand  was  necessary  before  bringing  suit  for  the  property  or  its 
value.  Eeferring  to  the  apparent  equity  of  the  New  York  doc- 
trine as  applied  to  cases  where  the  purchaser  was  clearly  innocent, 
the  supreme  court  of  Michigan  says,  in  Trudo  v.  Anderson,  supra: 
*'  The  principle  upon  which  the  New  York  rule  rests  might  properly 
have  some  weight  with  the  court  upon  a  question  of  costs  where  these 
are  discretionary,  or  miglit  justify  the  legislature  in  refusing  costs 
to  the  plaintiff  where  a  previous  demand  could  have  been  made  with- 
out serious  risk  or  inconvenience,  and  the  suit  has  been  brought  with- 
out such  demand ;  but  we  think  the  principle  of  the  rule  cannot 
properly  be  extended  to  the  right  of  action."  Upon  the  case  pre- 
sented by  the  evidence,  the  instruction  complained  of  was  correct. 
The  judgment  of  the  district  court  is  affirmed.  All  the  judges  con- 
curring. 

Afp,rmed. 


CASTLE  V.  COEN  EXCHANGE  BANK. 

Supreme  Court  of  New  York,  January,  1894.     75  Hun.  90. 

Trover  for  the  conversion  of  a  bill  of  exchange  drawn  by  the 
Farmers'  National  Bank  of  Lancaster,  Penn.,  on  the  First  National 
Bank  of  New  York,  and  payable  to  the  order  of  the  cashier  of  the 
defendant  bank.  The  plaintiff  sues  as  the  assignee  of  the  rights  of 
one  Cameron. 

One  Mrs.  Melson  drew  a  check  on  the  Farmers'  Bank  payable 
to  the  order  of  Cameron;  Cameron  indorsed  the  check  for  collec- 
tion to  Harrison's  Bank,  which  indorsed  it  "  for  collection  "  to  the 
Corn  Exchange  Bank.  The  latter  bank  sent  the  check  to  the 
Farmers'  Bank,  on  which  it  was  drawn,  for  collection ;  and  in  pay- 
ment, the  Farmers'  Bank  drew  the  draft,  which  is  the  subject  of  this 
suit,  upon  the  First  National  Bank,  payable  to  the  order  of  the  de- 
fendant's cashier,  and  mailed  it  to  the  defendant,  by  whom  it  was 
duly  received. 

Subsequently,  Cameron,  having  learned  of  the  failure  of  Harri- 
son's Bank,  telegraphed  Mrs.  ]\Ielson  to  stop  payment  on  it.  Mrs. 
Melson  went  to  the  Farmers'  Bank  to  stop  payment  of  the  check; 
and  on  learning  that  the  check  had  been  paid  by  the  draft,  telegraphed 
the  defendant  bank  to  hold  the  money  on  the  draft. 

To  this  telegram,  the  defendant  replied,  saying  that  it  was  the 


538  CASTLE    V.    CORN    EXCHANGE   BANK.  [CHAP.    XIV. 

owner  of  the  draft.  Thereupon  the  Farmers'  Bank  telegraphed  the 
defendant,  asking  it  to  hold  the  draft.  The  defendant  replied  that 
it  could  not,  that  the  check  which  the  draft  paid  was  its  property. 

The  Farmers'  Bank  then  countermanded  payment  of  the  draft  by 
the  First  National  Bank,  the  drawee.  The  Corn  Exchange  Bank 
then  sued  the  Farmers'  Bank,  upon  the  draft,  attaching  money  in  the 
First  National  Bank  belonging  to  the  Farmers'  Bank,  and  the  money 
so  attached  was  paid  over  under  the  attachment  to  the  sheriff,  who 
took  the  money  and  absconded. 

At  the  trial  a  verdict  was  directed  for  the  defendant,  and  the 
plaintiff's  motion  to  set  aside  the  verdict  and  for  a  new  trial  was 
denied,  and  the  plaintiff  appealed. 

O'Brien,  J.  .  .  .  Here  the  evidence  showed  that  the  plaintiff's 
assignor  delivered  the  check,  which  was  subsequently  cancelled,  and 
for  which  the  draft  involved  in  this  action  was  substituted,  for  col- 
lection. And  as  no  evidence  was  offered  on  the  part  of  the  defendant 
tending  to  show  that  it  parted  with  any  value  upon  the  faith  of  the 
receipt  of  such  draft,  the  question  of  its  ownership  as  having  received 
the  same  for  value  does  not  arise.  In  determining  whether  the  direc- 
tion was  right,  therefore,  we  can  assume  that  the  law  as  laid  down 
in  the  case  of  McBride  v.  Farmers'  Bank  of  Salem,  Ohio,  26  N.  Y. 
450,  which  has  been  cited  with  approval  in  numerous  cases,  is  author- 
ity for  the  proposition  that  a  bank  receiving  from  another,  notes, 
checks  or  drafts  for  collection,  obtains  no  better  title  to  them  or  the 
proceeds  than  the  remitting  bank  had,  unless  it  becomes  a  purchaser 
for  value  without  notice  of  any  defect  of  title.  As  the  defendant 
does  not  claim  to  stand  in  the  position  of  such  holder  for  value,  it 
would  follow  that,  unless  there  is  some  obstacle  to  the  maintenance 
of  the  action,  the  plaintiff  could  recover. 

There  are  three  grounds  relied  upon  to  defeat  such  a  recovery, 
only  one  of  which  we  think  need  be  considered. 

The  facts  show  that  the  defendant  came  lawfully  into  possession  of 
the  draft,  charged  with  the  duty,  as  between  it  and  the  party  from 
whom  it  was  received,  of  collecting  it.  The  original  check  received 
for  wliich  the  draft  was  substituted,  as  said  by  Mr.  Justice  Follett,  in 
C.  E.  Bank  v.  F.  N.  Bank,  supra,^  "  was  no  longer  a  valid  contract. 
The  liability  of  the  drawer  and  indorscrs  thereon  was  ended,  and 
could  never  be  restored.  The  Lancaster  bank  ^  had  legally  and  in 
good  faith  discharged  its  duty  to  the  drawer,  the  indorsers  and  the 
holder  of  the  check,  and  the  Corn  Exchange  Bank  had  accepted  of 
the  draft  of  the  Lancaster  bank  in  discharge  of  the  liability  of  the 
drawer  and  indorsers." 

Tliercforo,  the;  l)ank  having  come  rightfully  in  possession  of  the 
draft,  and  having  rightfully  proceeded  to  enforce  its  collection,  the 

» 11«  N.  Y.  445. 

*  That  Is.  the  Farmers'  Bank. 


CHAP.    XIV.]  CONVERSION.  539 

question  presented  is,  whether  the  plaintiff  can  maintain  this  action 
without  showing  that  he  or  his  assignor,  claiming  to  own  the  draft 
or  the  proceeds,  made  a  demand  before  suit  brought. 

The  plaintiff  appears  to  have  been  impressed  by  the  importance 
of  a  demand,  because  in  the  complaint,  after  reciting  the  facts,  it  is 
alleged :  "  That  on  said  day,  and  before  such  presentation  of  said 
draft,  all  authority  of  defendant  to  collect  the  same  was  duly  coun- 
termanded and  revoked,  and  said  Cameron  thereupon  duly  demanded 
that  defendant  at  once  deliver  to  him  said  draft  theretofore  indorsed 
in  blank  as  aforesaid." 

We  have  examined  the  record  and  can  find  no  proof  in  support  of 
this  portion  of  the  complaint.  There  is  no  testimony  of  the  plain- 
tiff's assignor,  nor  of  anyone  else  on  his  behalf,  showing  a  demand 
of  the  draft. 

In  view  of  the  authorities,  we  must  regard  it  as  settled  law  that  one 
who  comes  lawfully  in  possession  of  property  is  not  liable  for  con- 
version until  after  demand  and  refusal.  Gillet  v.  Roberts,  57  N.  Y. 
28;  2  Bouv.  Inst.  ss.  3530,  3531,  3528.  In  the  last  section  (3528) 
it  is  said :  "  When  the  conversion  is  direct,  as  by  an  unlegal  taking 
under  a  wrongful  assumption  of  property,  or  a  misuse  of  the  chattel, 
we  have  seen  that  the  conversion  is  complete  without  a  demand;  but 
to  maintain  trover  for  an  indirect  conversion,  a  demand  is  in  general 
indispensable,  because  the  defendant  being  lawfully  in  possession  of 
the  goods,  there  is  no  conversion  before  he  assumes  a  property  in 
them."  To  the  same  effect  is  the  American  and  English  Encyclo- 
pedia of  Law,  Vol.  4,  title  "  Conversion,"  p.  115,  which  not  only  con- 
firms the  rule  as  stated  by  Bouvier,  but  cites  the  case  of  Storm  v. 
Livingston,  6  Johns.  44,  as  authority  for  its  statement  that  the  de- 
mand must  be  made  before  the  action  is  brought. 

The  two  cases  relied  upon  by  the  plaintiff  to  show  that  no  demand 
is  necessary  seem  to  us  to  have  been  ill  chosen.  One,  that  of  McBride 
V.  Farmers'  Bank,  from  which  we  have  quoted  supra,  is  authority 
for  the  position  that  one  to  whom  the  right  of  action  was  assigned 
could  maintain  the  action  without  demand;  but  this  was  placed  ex- 
pressly upon  the  ground  that,  the  assignor  having  demanded  the  note 
before  maturity  and  the  proceeds  afterwards,  the  cause  of  action  was 
thus  complete  and  no  new  demand  necessary.  McKee  v.  Judd,  12 
N".  Y.  622,  which  is  the  other  case  cited  by  appellant,  was  an  action 
for  the  wron<T:ful  taking  and  conversion  of  personal  property,  and  it 
was  therein  held  that  in  such  an  action  no  demand  or  refusal  was 
necessary  to  maintain  the  action. 

Another  and  a  stronger  position  taken  by  appellant  to  obviate  the 
necessity  of  a  demand  is,  that  though  the  original  possession  by  de- 
fendant was  lawful  and  a  demand  to  place  it  in  the  wrong  would 
have  been  necessary,  yet,  it  appearing  that  the  defendant  assumed 
ownership  and  converted  the  draft  and  proceeds  to  its  own  use,  this 


540  CASTLE    V.    CORN    EXCHANGE   BANK.  [CHAP.    XIV. 

was  such  an  unwarranted  and  unjustifiable  position  as  to  do  away 
with  the  necessity  of  a  demand. 

^Yhile  it  may  be  stated  as  a  general  proposition  that  where  one 
comes  lawfully  in  possession  of  property,  in  order  that  an  action  may 
lie  against  him  for  conversion,  a  demand  is  necessary,  and  also  that 
where  the  original  taking  or  possession  was  wrongful,  no  demand  is 
necessary,  there  is  still  authority  for  the  further  position  that  though 
one  may  come  lawfully  into  possession  of  property,  if,  after  notice 
of  the  rights  of  the  true  owner  and  regardless  thereof,  dominion  and 
ownership  is  asserted,  then  demand  is  not  necessary.  Or,  as  held  in 
Boyce  v.  Brockway,  31  IST.  Y.  490:  "Where  the  assumption  of  do- 
minion over  property  is  in  hostility  to  the  rights  of  the  true  owner, 
such  assumption  amounts  in  law  to  a  conversion.  To  maintain  an 
action  for  the  wrongful  conversion  of  property,  it  is  enough  that  the 
rightful  owner  has  been  deprived  of  it  by  the  unauthorized  act  of 
another  assuming  dominion  over  it." 

The  principle  underlying  these  different  instances  of  when  conver- 
sion will  lie  is  the  same  in  all,  requiring  that  before  an  action  for 
conversion  can  be  maintained  the  person  sought  to  be  held  shall, 
either  by  his  own  act  or  the  act  of  the  owner  of  the  property,  be 
placed  in  the  wrong.  Applying  this  principle,  we  think  that  the  evi- 
dence in  this  case  is  clearly  insufficient  to  justify  the  inference  that 
the  defendant,  in  the  absence  of  any  demand,  was  placed  in  the  wrong. 
In  other  words,  we  do  not  think  that  the  testimony  tended  to  prove 
that  the  defendant  was  guilty  of  conversion. 

The  only  evidence  that  could  be  tortured  into  a  demand,  or  as- 
signed as  supporting  the  theory  of  a  conversion,  is  a  telegraphic  cor- 
respondence passing  between  defendant  and  the  maker  of  the  check 
and  the  Farmers'  National  Bank.  The  first  of  these  telegrams  sent 
by  the  maker  of  the  check  simply  requested  the  defendant  to  hold  the 
money  on  the  draft  in  suit,  stating  that  the  bank  to  which  it  had  been 
delivered  for  collection  had  suspended.  In  this  we  find  no  demand 
for  tlie  draft,  either  on  her  behalf  or  on  that  of  any  other  person. 
The  other  dispatch  was  sent  by  the  Farmers'  National  Bank  and 
reads:  "Can  you  hold  our  draft  on  1st  N.  Y.  sent  yesterday?  The 
drawer  and  indorser  would  like  to  have  the  money  held  for  their  ac- 
count." This  but  asks  the  defendant  to  hold  the  draft,  and  contains 
in  addition  a  statement  that  the  drawer  and  indorser  would  like  to 
have  the  money  held  for  their  account.  But  here,  again,  no  demand 
for  the  draft  was  made,  nor  is  there  any  reference  to  the  ownership 
claimed  by  plaintiff's  assignor. 

We  think  it  appears,  therefore,  that  no  demand  was  ever  made  by 
plaintiff's  assignor,  or  by  any  person  authorized  by  her  to  make  such 
dciiiiind.  It  is  true  tbat  the  defendant,  in  answer  to  one  of  the  tele- 
grams, stated  that  it  claimed  the  draft  as  its  own.  Tin's  cannot  be 
taken   as  a   refusal  after  demand  by  the  owner,  when  demand  was 


CHAP.    XIV.]  CONVERSION.  541 

never  made,  because  as  against  both  the  persons  sending  tlie  draft 
it  was  the  duty  of  the  defendant,  a  duty  which  he  owed  to  its  prin- 
cipal, who  had  sent  the  original  check  to  it,  to  enforce  the  payment 
of  the  draft  which  was  substituted  therefor,  and  it  can  hardly  be 
claimed  that  asserting  a  claim  as  against  the  drawers,  or  proceeding 
to  collect  the  draft,  which  it  was  its  duty  to  do,  was  conclusive  as 
between  it  and  the  true  owner  of  a  conversion  of  the  draft  or  its 
proceeds. 

To  constitute  conversion  there  must  be  a  claim  of  ownership  as- 
serted against  the  true  owner,  or  in  a  case  where  the  property  has 
come  lawfully  into  the  possession  of  another,  there  must  be  a  demand 
for  its  return  by  the  owner  or  his  authorized  agent.  A  demand  by 
a  third  person,  who  has  no  relation  to,  or  does  not  stand  in  privity 
with,  the  owner,  is  not  sufficient. 

In  our  opinion,  as  the  defendant  was  never  placed  in  the  wrong, 
and  never  had  any  demand  of  it  by  the  rightful  owner,  the  action 
for  conversion  would  not  lie,  and  the  evidence,  as  it  stood  at  the 
close  of  the  trial,  justified  the  direction  of  a  verdict  in  defendant's 
favor,  if,  upon  no  other  ground,  upon  this  ground  alone. 

We  think  that  the  direction  was  right,  and  that  the  judgment  ap- 
pealed from  should  be  affirmed,  with  costs. 

Van  Beunt,  P.  J.,  and  Parker,  J.,  concurred. 

Judgment  affirmed,  with  costs. 


SINGER   ]VL\NUFACTURING   COMPANY   v.   KING. 

Supreme  Court  of  Rhode  Island,  June,  1884.     14  R.  I.  511. 

The  case  is  stated  in  the  opinion. 

DuRFEE,  C.  J.  This  is  trover  for  the  conversion  of  a  sewing  ma- 
chine belonging  to  the  plaintiff  company.  The  case  was  tried  in  the 
Court  of  Common  Pleas  and  comes  here  on  exceptions.  The  testi- 
mony given  at  the  trial  for  the  plaintiff  went  to  show  that  the 
machine  was  demanded  of  the  defendant  by  direction  of  Charles  H. 
Harris,  agent  for  the  plaintiff,  and  that  the  defendant,  who  was 
agent  for  the  American  Sewing  Machine  Company,  though  he  had 
the  machine,  refused  to  deliver  it  until  storage  was  paid  for  it  or 
until  another  machine  belonging  to  the  American  Sewing  Machine 
Company  which  the  plaintiff  had  was  returned.  The  defendant  tes- 
tified that  the  machine  was  brought  to  him  by  one  Conner,  an  em- 
ployee of  the  American  Sewing  Machine  Company;  that  he  was 
instructed  to  hold  it  for  storage,  and  that,  though  he  did  not  announce 
it  when  the  demand  was  made,  the  plaintiff  knew  tliat  he  was  agent 
for  the  American  Sewing  Machine  Company.     It  further  appeared 


542  SINGER   MFG.    CO.    V.    KING.  [CHAP.    XIV. 

that  the  machine  had  been  leased  to  a  Mrs.  Lynch  by  the  plaintiff 
Company;  that  Conner  had  received  it  from  her,  leaving  a  machine 
of  the  American  Company  in  place  of  it;  that  he  had  carried  it  to 
Harris,  and  that  Harris  refused  to  receive  it,  saying  that  his  Com- 
pany had  no  machines  out  which  were  then  due;  that  he  then  car- 
ried it  to  the  American  Sewing  Machine  Company  and  told  Harris 
that  he  had  done  it.  Harris  testified  in  reply  that  he  did  not  see  the 
machine  when  Conner  brought  it  and  that  he  had  not  authorized  any 
one  to  store  it  with  the  American  Company. 

1.  The  court  instructed  the  jury  that  if  the  defendant,  when  de- 
mand was  made  upon  him,  was  the  agent  of  the  iVmerican  Sewing 
Machine  Company,  and  was  holding  the  machine  under  their  orders 
and  not  for  himself  or  under  his  own  control,  then  the  defendant 
would  not  be  guilty.     The  plaintiff  excepted. 

2.  The  plaintiff  asked  the  court  to  instruct  the  jury  that  the  de- 
fendant would  be  guilty  unless  he  told  the  plaintiff  when  the  demand 
was  made  that  he  was  holding  the  machine  as  servant  of  the  Amer- 
ican Sewing  Machine  Company.  The  court  refused  so  to  instruct 
the  jury,  but  did  instruct  them  that  the  defendant's  omission  to  give 
the  information  would  not  constitute  a  conversion,  but  would  be 
evidence  for  them  to  consider  in  determining  the  question  as  to 
whether  he  was  holding  the  machine  as  agent  or  not.  The  plaintiff 
excepted.  The  question  is,  were  the  instructions  and  the  refusal  cor- 
rect. 

Ordinarily,  when  one  person  has  the  chattel  of  another,  it  is  his 
duty  to  deliver  it  to  the  owner  or  his  agent  on  demand,  and  if  he 
refuses  to  do  so,  his  refusal  is  evidence  of  a  conversion.  It  is,  how- 
ever, only  prima  facie  evidence  and  may  be  explained.  Magee  v. 
Scott,  9  "Cush.  148;  Eobinson  v.  Burleigh,  5  N.  H.  225;  Dictus  v. 
Fuss,  8  Md.  148;  Green  v.  Dunn,  3  Camp.  215;  Solomons  v.  Dawes, 
1  Esp.  83.  Thus  it  is  no  conversion  for  the  bailee  of  a  chattel,  who 
has  received  it  in  good  faith  from  some  person  other  than  the  owner, 
to  refuse  to  deliver  it  to  the  owner  making  demand  for  it  until  he 
has  had  time  to  satisfy  himself  in  regard  to  the  ownership.  Carroll 
V.  Mix,  51  Barb.  S.  C.212;  Lee  v.  Bayes,  18  C.  B.  599,  607;  Sheridan 
V.  The  New  Quay  Co.,  4  C.  B.  N.  S.  618;  Coles  v.  Wright,  4  Taunt. 
198.  In  the  case  of  a  servant  who  has  received  the  chattel  from  his 
master,  it  has  been  held  that  he  ought  not  to  give  it  up  without  first 
consulting  his  master  in  regard  to  it.  Mires  v.  Solebay,  2  Mod.  242, 
245;  Alexander  v.  Southcy,  5  B.  &  A.  247;  Berry  v.  Vantries,  12 
Scrg.  &  R.  89.  But  if,  after  having  had  an  opportunity  to  confer 
with  his  master,  he  relics  on  his  master's  title  and  absolutely  refuses 
to  comply  with  the  demand,  he  will  be  liable  for  a  conversion.  Lee 
V.  Robinson,  25  L.  J.  C.  P.  249;  18  C.  B.  599;  1  Addison  on  Torts, 
s.  475;  Orcenway  v.  Fisher,  1  Car.  &  P.  ]90;  Stoplicns  v.  Elwoll,  4 
M.  &  S.  259;  Perkins  v.  Smith,  1  Wils.  328;  Gage  v.  Whittier,  17 


CHAP.    XIV.]  CONVERSION.  543 

N.  H.  312.    The  mere  fact  that  he  refuses  for  the  benefit  of  his  prin- 
cipal will  not  protect  him.    Kimball  v.  Billings,  55  Me.  147. 

In  the  case  at  bar  the  defence  is  that  the  defendant,  acting  as  agont 
of  the  American  Sewing  Machine  Company,  refused  to  deliver  the 
machine  in  obedience  to  instructions  not  to  deliver  it  until  storage 
was  paid  for  it.  The  defendant  did  not  refuse  for  the  purpose  of 
consulting  his  principal,  but  it  would  seem  that  he  had  received  his 
instructions  before  the  demand  in  anticipation  of  it.  He  was  not  a 
mere  servant  but  an  agent,  and  he  may  have  been,  for  anything  that 
appears,  a  general  agent.  The  machine  came  to  hira,  not  from  his 
master  or  principal,  as  in  Mires  v.  Colebay;  but  from  a  fellow  em- 
ployee, and  he  may  have  known,  indeed  the  evidence  carries  the  im- 
pression that  he  did  know,  all  the  circumstances  in  regard  to  it,  and 
nevertheless  co-operated  with  his  principal  in  withholding  it  from 
its  owner  by  insisting  on  a  condition  which  neither  he  nor  his  prin- 
cipal had  any  right  to  impose.  If  such  was  the  fact,  we  think  he  was 
guilty ;  and  yet,  if  such  was  the  fact,  the  jury  might  have  found  him 
not  guilty  under  the  instructions  given  by  the  court  which  are  the 
ground  of  the  first  exception.  The  first  exception  must  therefore  be 
sustained.  We  do  not  find  any  error  in  the  instructions  which  are 
the  ground  of  the  second  exception,  except  in  so  far  as  they  involve 
a  repetition  of  instructions  before  given.  The  case  will  be  remitted 
for  new  trial. 

Exceptions  sustained. 


;>44  THUESTON   V.   HANCOCK.  [CHAP.   XV. 


CHAPTER   XV. 

VIOLATION"  OF  EIGHTS  OF  SUPPORT. 

THURSTOX  V.  HANCOCK. 
Supreme  Court  of  Massachusetts,  March,  1815.     12  Mass.  220. 

This  was  an  action  of  the  case,  in  which  the  plaintiff  declares  that 
long  before  the  several  grievances  afterwards  mentioned,  and  at  the 
several  times  of  committing  the  same,  he  was,  and  thence  hitherto  hath 
been,  and  still  is,  seised  in  fee  of  a  certain  messuage  or  dwelling- 
house  and  land,  with  the  appurtenances,  in  Boston,  which  were  in  his 
possession  and  occupancy,  and  he  had,  and  still  ought  to  have,  the  full, 
safe,  and  secure  use  and  enjoyment  of  the  same;  nevertheless,  the 
defendants,  well  knowing  the  premises,  but  maliciously  contriving  and 
intending  to  hurt  the  plaintiff  in  this  behalf,  and  to  deprive  him  of 
the  use  and  benefit  of  the  said  dwelling-house,  on,  &c.,  and  on  divers 
other  days  and  times  between  that  day  and  the  day  of  suing  his 
original  writ  in  this  behalf,  at  Boston  aforesaid,  wrongfully  and  in- 
juriously took,  dug,  and  carried  away  the  earth,  ground,  and  soil  from 
the  land  next  adjoining  the  plaintiff's  said  dwelling-house  and  land, 
to  a  great  depth,  that  is  to  say,  to  the  depth  of  sixty  feet  below  the 
ancient  surface  of  the  said  next  adjoining  land,  and  below  the  founda- 
tion of  the  plaintiff's  said  dwelling-house,  and  so  near  and  so  close 
to  the  said  dwelling-house  and  land  that  the  ground,  earth,  and  soil 
of  the  plaintiff  was  undermined,  and  hath  fallen  away  from  around 
his  said  dwelling-house,  and  from  his  land  on  which  the  same  are 
situated;  so  that  the  cellar  walls  thereof  have  been  left  naked  and 
exposed;  by  reason  whereof  the  plaintiff  hath  been,  and  still  is, 
greatly  prejudiced  and  injured  in  his  aforesaid  estate,  of  and  in  the 
said  dwelling-house  and  land,  and  the  same  is  become  of  no  value 
to  him,  and  the  said  house  hath  been,  and  still  is,  in  great  danger  of 
being  thereby  undermined  and  of  falling  down,  and  hath  been  thereby 
rendered  wholly  unsafe  and  insecure  to  dwell  in,  and  of  no  use  or 
benefit  to  the  plaintiff,  and  by  reason  of  the  premises  he  hath  been 
obliged  to  quit  said  house  and  to  leave  the  same  empty  and  unten- 
antf'd,  and  been  put  to  great  trouble  and  expense,  and  hath  been,  and 
still  is,  deprived  of  all  benefit,  use,  and  enjoyment  thereof,  by  means 
and  on  account  of  the  premises.    To  his  damage  $'30,000. 

A  trial  was  had  upon  the  issue  of  not  guilty,  November  term,  1813, 
and  a  verdict  found  for  the  defendants  was  to  be  set  aside,  and  a  new 


CHAP.    XV.]  VIOLATION    OF    RIGHTS    OF    SUPPORT.  545 

trial  granted,  if,  in  the  opinion  of  the  court,  the  plaintiff  was  entitled 
to  maintain  his  action  upon  the  following  state  of  facts  reported  by 
the  judge  who  sat  in  the  trial,  namely:  that  the  plaintiff,  in  the  year 
1802,  purchased  a  parcel  of  land  upon  Beacon  Hill,  so  called,  in  Bos- 
ton, bounded  westwardly  on  land  belonging  to  the  town  of  Boston, 
on  the  said  hill,  castwardly  on  Bowdoin  Street,  so  called,  and  north- 
wardly and  southwardly  on  land  of  D.  D.  Rogers,  Esq. ;  that  after- 
wards, in  the  year  1804,  the  plaintiff  erected  a  valuable  brick  dwell- 
ing-house thereon,  which  stood  at  the  distance  of  forty  feet  from  the 
northern  and  southern  bounds  of  his  land,  the  back  side  of  the  said 
house  being  about  two  feet  from  the  western  bounds  of  said  land; 
that  the  foundation  of  said  house  was  placed  about  fifteen  feet  below 
the  ancient  surface  of  the  land;  that  the  plaintiff,  with  his  family, 
occupied  the  said  house  and  land  from  the  month  of  December,  1804, 
until  they  were  obliged  to  remove  therefrom,  as  hereafter  mentioned; 
that  the  defendants  commenced  digging  and  removing  the  gravel 
from  the  side  of  the  said  hill  in  the  year  1811 ;  that  on  the  27th  of 
July,  1811,  the  plaintiff  gave  them  written  notice  that  his  house  was 
endangered  thereby;  that  the  defendants,  notwithstanding,  continued 
to  dig  and  carry  away  the  earth  and  gravel  from  the  hill,  until  the 
commencement  of  this  action;  that  the  only  land  belonging  to  the 
defendants,  which  adjoined  to  the  said  house  and  land  of  the  plaintiff, 
was  purchased  by  them  of  the  town  of  Boston,  and  conveyed  by  deed 
dated  the  6th  of  August,  1811 ;  that  the  land  thus  bought  by  the 
defendants  consisted  of  a  lot  about  one  hundred  feet  square,  upon  the 
top  of  said  Beacon  Hill,  and  a  right  in  a  highway  thirty  feet  wide, 
leading  to  it  from  Summer  Street;  that  this  lot  and  highway  were 
laid  out  by  said  town  more  than  sixty  years  since,  for  the  purpose 
of  erecting  a  beacon,  and  have  never  been  used  for  any  other  purpose, 
except  the  erection  of  a  monument;  that  the  town  derived  its  title 
to  said  land  from  long-continued  possession  for  the  purpose  aforesaid; 
that  all  these  facts  were  known  to  the  defendants  before  they  pur- 
chased said  land  of  the  town;  that  this  land  adjoined  the  plaintiff's 
house  and  land  on  the  western  side,  and,  at  the  time  of  suing  out  the 
plaintiff's  wTit,  the  defendants'  digging  and  removal  of  the  earth  as 
aforesaid  had  approached,  on  the  surface,  within  five  or  six  feet  of 
the  plaintiff's  house  on  the  western  side  thereof,  and  in  some  places 
the  earth  had,  by  reason  of  said  digging  and  removal,  fallen  from 
the  walls  thereof;  that  the  defendants  had  dug  and  carried  away  the 
earth  near  the  northwestwardly  corner  of  said  house  to  the  depth  of 
forty-five  feet,  and  on  the  western  side  thereof  to  the  depth  of  thirty 
feet,  below  the  natural  surface  of  their  own,  as  well  as  of  the  plain- 
tiff's land;  that  the  earth  dug  and  removed  by  the  defendants  as 
aforesaid  was  upon  and  from  their  said  land  next  adjoining  the  plain- 
tiff's land ;  that,  by  reason  of  the  digging  and  removing  of  the  earth 
as  aforesaid,  to  the  depth  aforesaid,  below  the  ancient  surface  of  the 


546  THURSTON    V.    HANCOCK.  [CHAP.   XV. 

earth,  a  part  of  the-  plaintiff's  earth  and  soil,  on  the  surface  of  his 
said  land,  had  fallen  away  and  slidden  upon  the  defendants'  land; 
and  the  foundation  of  the  plaintiff's  house  was  rendered  insecure,  and 
it  became,  and  was,  at  the  time  of  commencing  this  action,  unsafe 
and  dangerous  to  dwell  in  said  house;  and  the  plaintiff  was  obliged 
to  quit  and  abandon  the  same,  previous  to  his  commencing  this  action, 
and  afterwards  to  take  it  down  in  order  to  save  the  materials  thereof. 

Parker,  C.  J.  The  facts  agreed  present  a  case  of  great  misfortune 
and  loss,  and  one  which  has  induced  us  to  look  very  minutely  into  the 
authorities,  to  see  if  any  remedy  exists  in  law  against  those  who  have 
been  the  immediate  actors  in  what  has  occasioned  the  loss ;  but,  after 
all  the  researches  we  have  been  able  to  make,  we  cannot  satisfy  our- 
selves that  the  facts  reported  will  maintain  this  action. 

The  plaintiff  purchased  his  land  in  the  year  1802,  on  the  summit 
of  Beacon  Hill,  which  has  a  rapid  declivity  on  all  sides.  In  1804,  he 
erected  a  brick  dwelling-house  and  out-houses  on  this  lot,  and  laid  his 
foundation,  on  the  western  side,  within  two  feet  of  his  boundary  line. 
The  inhabitants  of  the  town  of  Boston  were  at  that  time  the  owners, 
either  by  original  title  or  by  an  uninterrupted  possession  for  more 
than  sixty  years,  of  the  land  on  the  hill  lying  westwardly  of  the  lot 
purchased  by  the  plaintiff.  On  the  6th  of  August,  1811,  the  defend- 
ants purchased  of  the  town  the  land  situated  westwardly  of  the  said 
lot  owned  by  the  plaintiff ;  and,  in  the  same  year,  commenced  levelling 
the  hill,  by  digging  and  carrying  away  the  gravel;  they  not  actually 
digging  up  to  the  line  of  division  between  them  and  the  plaintiff,  but 
keeping  five  or  six  feet  therefrom.  Nevertheless,  by  reason  of  the 
hill,  the  earth  fell  away,  so  as  in  some  places  to  leave  the  plaintiff's 
foundation  wall  bare,  and  so  to  endanger  the  falling  of  his  house 
as  to  make  it  prudent  and  necessary,  in  the  opinion  of  skilful  persons, 
for  the  safety  of  the  lives  of  himself  and  his  family,  to  remove  from 
the  house ;  and,  in  order  to  save  the  materials,  to  take  down  the  house, 
and  to  rebuild  it  on  a  safer  foundation.  The  defendants  were  notified 
of  the  probable  consequences  of  thus  digging  by  the  plaintiff,  and 
were  warned  that  they  would  be  called  npon  for  damages,  in  case  of 
any  loss. 

The  manner  in  which  the  town  of  Boston  acquired  a  title  to  the 
land,  or  to  the  particular  use  to  which  it  was  appropriated,  can  have 
no  influence  upon  the  question,  as  the  fee  was  in  the  town,  without 
any  restriction  as  to  the  manner  in  wliicli  the  land  should  be  used  or 
occupied. 

It  is  a  common  principle  of  tlie  civil  and  of  the  common  law,  that 
the  proprietor  of  land,  unless  restrained  by  covenant  or  custom,  has 
the  entire  dominion,  not  only  of  the  soil,  but  of  the  space  above  and 
below  the  surface,  to  any  extent  he  may  choose  to  occupy  it. 

The  law,  founded  upon  principles  of  reason  and  common  utility, 
has  admitted  a  qualification  to  this  dominion,  restricting  the  pro- 


CHAP.    XV,]  VIOLATION    OF    RIGHTS    OF   SUPPORT.  547 

prietor  so  to  use  his  own  as  not  to  injure  the  property  or  impair  any 
actual  existing  rights  of  another.  Sic  utere  tuo  ut  allcnum  non  laedas. 
Thus,  no  man,  having  land  adjoining  his  neighbor's  whicli  has  been 
long  built  upon,  shall  erect  a  building  in  such  manner  as  to  interrupt 
the  light  or  the  air  of  his  neighbor's  house,  or  expose  it  to  injury 
from  the  weather  or  to  the  unwholesome  smells. 

But  this  subjection  of  the  use  of  a  man's  own  property  to  the 
convenience  of  his  neighbor  is  founded  upon  a  supposed  pre-existing 
right  in  his  neighbor  to  have  and  enjoy  the  privilege  which  by  such 
act  is  impaired.  Therefore  it  is,  that,  by  the  ancient  common  law, 
no  man  could  maintain  an  action  against  the  owner  of  an  adjoining 
tract  of  land,  for  interrupting  the  passage  of  the  light  or  the  air  to 
a  tenement  unless  the  tenement  thus  affected  was  ancient,  so  that 
the  plaintiff  could  prescribe  for  the  privilege  of  which  he  had  been 
deprived,  upon  the  common  notion  of  prescription,  that  there  was 
formerly  a  grant  of  the  privilege,  which  grant  has  been  lost  by  lapse 
of  time,  although  the  enjoyment  of  it  has  continued. 

Now,  in  such  case  of  a  grant  presumed,  it  shall  for  the  purposes 
of  justice  be  further  presumed  that  it  was  from  the  ancestor  of  the 
man  interrupting  the  privilege,  or  from  those  whose  estate  he  has; 
so  as  to  control  him  in  the  use  of  his  own  property,  in  any  manner 
that  shall  interfere  with  or  defeat  an  ancient  grant  thus  supposed 
to  have  been  made.  This  is  the  only  way  of  accounting  for  the  com- 
mon-law principle  which  gives  one  neighbor  an  action  against  another, 
for  making  the  same  use  of  his  property  which  he  has  made  of  his 
own.  And  it  is  a  reasonable  principle;  for  it  would  be  exceedingly 
unjust  that  successive  purchasers  or  inheritors  of  an  estate  for  the 
space  of  sixty  years,  with  certain  valuable  privileges  attached  to  it, 
should  be  liable  to  be  disturbed  by  the  representatives  or  successors 
of  those  who  originally  granted,  or  consented  to,  or  acquiesced  in, 
the  use  of  the  privilege. 

It  is  true,  that,  of  late  years,  the  courts  in  England  have  sustained 
actions  for  the  obstruction  of  such  privileges  of  much  shorter  dura- 
tion than  sixty  years.  But  the  same  principle  is  preserved  of  the 
presumption  of  a  grant.  And,  indeed,  the  modern  doctrine,  with 
respect  to  easements  and  privileges,  is  but  a  necessary  consequence  of 
late  decisions,  that  grants  and  title-deeds  may  be  presumed  to  have 
been  made,  although  the  title  or  privilege  claimed  under  them  is  of 
a  much  later  date  than  the  ancient  time  of  prescription. 

The  plaintiff  cannot  pretend  to  found  his  action  upon  this  prin- 
ciple; for  he  first  became  proprietor  of  the  land  in  1802,  and  built 
his  house  in  1804,  ten  years  before  the  commencement  of  his  suit. 
So  that,  if  the  presumption  of  a  grant  were  not  defeated  by  showing 
the  commencement  of  his  title  to  be  so  recent,  yet  there  is  no  case, 
where  less  than  twenty  years  has  entitled  a  building  to  the  qualities 
of  an  ancient  building,  so  as  to  give  the  owner  a  right  to  the  continued 


548  THURSTON    V.    HANCOCK.  [CIIAP.    XV. 

use  of  privileges,  the  full  enjoyment  of  which  necessarily  trenches 
upon  his  neighbor's  right  to  use  his  own  property  in  the  way  he  shall 
deem  most  to  his  advantage.  A  man  who  purchases  a  house,  or  suc- 
ceeds to  one,  which  has  the  marks  of  antiquity  about  it,  may  well 
suppose  that  all  its  privileges  of  right  appertain  to  the  house;  and, 
indeed,  they  could  not  have  remained  so  long,  without  the  culpable 
negligence  or  friendly  acfjuiescence  of  those  who  might  originally 
have  had  a  right  to  hinder  or  obstruct  them.  But  a  man  who  him- 
self builds  a  house  adjoining  his  neighbor's  land,  ought  to  foresee 
the  probable  use  by  his  neighbor  of  the  adjoining  land,  and,  by  con- 
vention with  his  neighbor,  or  by  a  different  arrangement  of  his  house, 
secure  himself  against  future  interruption  and  inconvenience. 

This  seems  to  be  the  result  of  the  cases  anciently  settled  in  Eng- 
land, upon  the  substance  of  nuisance  or  interruption  of  privileges 
and  easements;  and  it  seems  to  be  as  much  the  dictate  of  common 
sense  and  sound  reason  as  of  legal  authority. 

The  decisions  cited  by  the  counsel  for  the  plaintiff,  1  Domat,  309, 
408;  Fitz.  N.  B.  183;  9  Co.  59;  Palmer,  536;  1  Eoll.  Abr.  140;  ib. 
430;  Slingsby  v.  Barnard,  1  Eoll.  Eep.  88;  2  Eoll.  Abr.  565;  2 
Saund.  697;  Co.  Lit.  56  & ;  1  Burr.  337;  6  D.  &  E.  411;  7  East,  368; 
1  B.  &  P.  405;  3  Wils.  461,  in  support  of  this  action,  generally  go  to 
establish  only  the  general  principle,  that  a  remedy  lies  for  one  who 
is  injured  consequentially  by  the  acts  of  his  neighbor  done  on  his  own 
property.  The  civil-law  doctrine  cited  from  Domat  will  be  found, 
upon  examination,  to  go  no  further  than  the  common  law  upon  the 
subject.  For,  although  it  is  there  laid  down  that  new  works  on  a 
man's  ground  are  prohibited,  provided  they  are  hurtful  to  others 
who  have  a  right  to  hinder  them,  and  that  the  person  erecting  them 
shall  restore  things  to  their  former  state,  and  repair  the  damages, 
from  whence,  probabty,  the  common-law  remedy  of  abating  a  nuisance 
as  well  as  recovery  of  damages,  yet  this  is  subsequently  explained  and 
qualified  in  another  part  of  the  same  chapter,  where  it  is  said,  that, 
if  a  man  does  what  he  has  a  right  to  do  upon  his  own  land,  without 
trespassing  upon  any  law,  custom,  title,  or  possession,  he  is  not  liable 
to  damage  for  injurious  consequences,  unless  he  does  it,  not  for  his 
own  advantage,  but  maliciously;  and  the  damages  shall  be  considered 
as  casualties  for  which  ho  is  not  answerable. 

The  common  law  bas  adopted  the  same  principle,  considering  the 
actual  enjoyment  of  an  easement  for  a  long  course  of  years  as  estab- 
lishing a  right  which  cannot  with  impunity  be  impaired  by  him  who 
is  the  owner  of  the  land  adjoining. 


In  Eolle's  Abriclgment,  565,  A,  seised  in  foe  of  copyhold  estate, 
next  adjoining  land  of  B,  erects  a  new  house  upon  his  copyhold  land, 
and  a  j)art  is  built  upon  the  confines  next  adjoining  tlie  land  of  B, 


CHAP.    XV.]  VIOLATION    OF    RIGHTS    OF    SUPPORT.  549 

and  B  afterwards  digs  his  land  so  near  the  house  of  A,  but  on  no  part 
of  his  land,  that  the  foundation  of  the  house,  and  even  the  house 
itself,  fall;  yet  no  action  lies  for  A  against  B,  because  it  was  the 
folly  of  A  that  he  built  his  house  so  near  to  the  land  of  B.  For  by 
his  own  act  he  shall  not  hinder  B  from  the  best  use  of  his  own 
land  that  he  can.  And,  after  verdict,  judgment  was  arrested.  The 
reporter  adds,  however,  that  it  seems  that  a  man,  who  has  land  next 
adjoining  my  land,  cannot  dig  his  land  so  near  mine  as  to  cause  mine 
to  slide  into  the  pit;  and,  if  an  action  be  brought  for  this,  it  will 
lie. 

Although,  at  first  view,  the  opinion  of  Eolle  seems  to  be  at  variance 
with  the  decision  which  he  has  stated,  yet  they  are  easily  reconciled 
with  sound  principles.  A  man  in  digging  upon  his  own  land  is  to 
have  regard  to  the  position  of  his  neighbor's  land,  and  the  probable 
consequences  to  his  neighbor,  if  he  digs  too  near  his  line;  and  if  he 
disturbs  the  natural  state  of  the  soil,  he  shall  answer  in  damages ;  but 
he  is  answerable  only  for  the  natural  and  necessary  consequences  of 
his  act,  and  not  for  the  value  of  a  house  put  upon  or  near  the  line  by 
his  neighbor.  For,  in  so  placing  the  house,  the  neighbor  was  in  fault, 
and  ought  to  have  taken  better  care  of  his  interest. 

If  this  be  the  law,  the  case  before  us  is  settled  by  it ;  and  we  have 
not  been  able  to  discover  that  the  doctrine  has  ever  been  overruled, 
nor  to  discern  any  good  reason  why  it  should  be. 

The  plaintiff  purchased  his  land  in  1802.  At  that  time  the  inhab- 
itants of  Boston  were  in  possession  and  the  owners  of  the  adjoining 
land  now  owned  by  the  defendants.  The  plaintiff  built  his  house 
within  two  feet  of  the  western  line  of  the  lot,  knowing  that  the  town, 
or  those  who  should  hold  under  it,  had  a  right  to  build  equally  near 
to  the  line,  or  to  dig  down  into  the  soil  for  any  other  lawful  purpose. 
He  knew  also  the  shape  and  nature  of  the  ground,  and  that  it  was 
impossible  to  dig  there  without  causing  excavations.  He  built  at 
his  peril;  for  it  was  not  possible  for  him,  merely  by  building  upon 
his  own  ground,  to  deprive  the  other  party  of  such  use  of  his  as  he 
should  deem  most  advantageous.  There  was  no  right  acquired  by 
his  ten  years'  occupation,  to  keep  his  neighbor  at  a  convenient  dis- 
tance from  him.  He  could  not  have  maintained  an  action  for  ob- 
structing the  light  or  air ;  because  he  should  have  known,  that,  in  the 
course  of  improvements  on  the  adjoining  land,  the  light  and  air  might 
be  obstructed.     It  is,  in  fact,  damnum  absque  injuria. 

By  the  authority  above  cited,  however,  it  would  appear  that  for  the 
loss  of,  or  injury  to,  the  soil  merely,  his  action  may  be  maintained. 
The  defendants  should  have  anticipated  the  consequences  of  digging 
so  near  the  line ;  and  they  are  answerable  for  the  direct  consequential 
damage  to  the  plaintiff,  although  not  for  the  adventitious  damage 
arising  from  his  putting  his  house  in  a  dangerous  position. 


550  HUMPHRIES    V.   BKOGDEN.  [CHAP.    XV. 

HUMPHRIES  V.  BROGDEK 
Queen's  Bench  of  England,  Michaelmas  Term,  1850.     12  Q.  B.  739. 

This  was  an  action  against  the  Durham  County  Coal  Company, 
sued  in  the  name  of  their  secretary.  On  the  trial  before  Coleridge, 
J.,  at  the  Durham  Spring  Assizes,  1850,  the  jury,  in  answer  to  ques- 
tions put  by  the  learned  judge,  found  the  facts  specially.  His  lordship 
then  directed  a  verdict  for  the  plaintiff,  giving  the  defendants  leave 
to  move  to  enter  a  verdict  for  them  upon  the  findings  of  the  jury. 
Rule  nisi.  Cur.  adv.  vult. 

Lord  Campbell,  C.  J.  This  is  an  action  on  the  case.  The  declara- 
tion alleges  that  the  plaintiff  was  possessed  of  divers  closes  of  pasture 
and  arable  land,  situate,  &c.,  yet  that  the  company,  so  wrongfully, 
carelessly,  negligently,  and  improperly,  and  without  leaving  any 
proper  and  sufficient  pillars  or  supports  in  that  behalf,  and  contrary 
to  the  custom  and  course  of  practice  of  mining  used  and  approved  of 
in  the  country  where  the  mines  thereinafter  mentioned  are  situate, 
worked  certain  coal-mines  under  and  contiguous  to  the  said  closes, 
and  dug  for  and  got  and  moved  the  coals,  minerals,  earth,  and  soil 
of  and  in  the  said  mines,  that,  by  reason  thereof,  the  soil  and  surface 
of  the  said  closes  sank  in,  cracked,  swagged,  and  gave  way;  and 
thereby,  &c.    The  only  material  plea  was  not  guilty. 

The  cause  coming  on  to  be  tried  before  my  brother  Coleridge  at 
the  last  spring  assizes  for  the  county  of  Durham,  it  appeared  that 
the  plaintiff  was  possessed  of  the  closes  described  in  the  declaration, 
and  that  the  Durham  County  Coal  Company  (who  may  sue  and  be 
sued  by  their  secretary)  were  lessees,  under  the  Bishop  of  Durham, 
of  the  coal-mines  under  them ;  but  there  was  no  other  evidence  what- 
ever as  to  the  tenure  or  the  title  either  of  the  surface  or  of  the  min- 
erals. It  appeared  that  the  company  had  taken  the  coals  under  the 
plaintiff's  closes,  without  leaving  any  sufficient  pillars  to  support  the 
surface,  whereby  the  closes  liad  swagged  and  sunk,  and  had  been  con- 
siderably injured;  but  that,  supposing  the  surface  and  the  minerals 
to  have  belonged  to  the  same  person,  these  operations  had  not  been 
conducted  carelessly,  or  negligently,  or  contrary  to  the  custom  of  the 
country.  The  jury  found  tliat  the  company  had  worked  carefully  and 
according  to  the  custom  of  the  country,  but  without  leaving  sufficient 
pillars  or  supports;  and  a  verdict  was  entered  for  the  plaintiff  for 
£110  damages,  with  leave  to  move  to  enter  a  verdict  for  the  defendant 
if  the  court  should  be  of  opinion  that,  under  these  circumstances,  the 
action  was  not  maintainable. 

The  case  was  very  learnedly  and  ably  argued  before  us  in  Easter 
and  Trinity  terms  last.  On  account  of  the  great  importance  of  the 
question,  we  have  taken  time  to  consider  of  our  judgment. 


CHAP.    XV.]  VIOLATION    OF    RIGHTS   OF    SUPPORT.  551 

For  the  defendant  it  was  contended  that,  after  the  special  finding 
of  the  jury,  the  declaration  is  defective  in  not  alleging  that  the  plain- 
tiff was  entitled  to  have  his  closes  supported  by  the  subjacent  strata. 
But  we  are  of  opinion  that  such  an  allegation  is  unnecessary  to  raise 
the  question  in  this  action,  whether  the  company,  although  they  did 
not  work  the  mines  negligently  or  contrary  to  the  custom  of  the 
country,  were  bound  to  h>avo  props  to  support  the  surface.  If  the 
easement  which  the  plaintiff  claims  exists,  it  does  not  arise  from  any 
special  grant  or  reservation,  but  is  of  common  right,  created  by  the 
law,  so  that  we  are  bound  to  take  notice  of  its  existence.  In  plead- 
ing it  is  enough  to  state  the  facts  from  which  a  right  or  a  duty 
arises.  The  carefully  prepared  declaration  in  Littledale  v.  Lord  Lons- 
dale, H.  Bl.  267,  for  disturbing  tlie  right  of  the  owner  of  the  surface 
of  lands  to  the  support  of  the  mineral  strata  belonging  to  another, 
contains  no  express  allegation  of  the  right;  and,  if  the  omission  had 
been  considered  important,  it  probably  would  have  been  relied  upon, 
rather  than  the  objection  that  a  peer  of  Parliament  was  not  liable  to 
be  sued  in  the  Court  of  King's  Bench  by  bill. 

We  have,  therefore,  to  consider,  whether,  when  the  surface  of  land 
(by  which  is  here  meant  the  soil  lying  over  the  minerals)  belongs  to 
one  man,  and  the  minerals  belong  to  another,  no  evidence  of  title 
appearing  to  regulate  or  qualify  their  rights  of  enjoyment,  the  owner 
of  the  minerals  may  remove  them  without  leaving  support  sufficient 
to  maintain  the  surface  in  its  natural  state.  This  case  is  entirely 
relieved  from  the  consideration  how  far  the  rights  and  liabilities  of 
the  owners  of  adjoining  tenements  are  affected  by  the  erection  of  build- 
ings; for  the  plaintiff  claims  no  greater  degree  of  support  for  his 
lands  than  they  must  have  required  and  enjoyed  since  the  globe  sub- 
sisted in  its  present  form. 

Where  portions  of  the  freehold,  lying  one  over  another  perpen- 
dicularly, belong  to  different  individuals,  and  constitute  (as  it  were) 
separate  closes,  the  degree  of  support  to  which  the  upper  is  entitled 
from  the  lower  has  as  yet  by  no  means  been  distinctly  defined.  But, 
in  the  case  of  adjoining  closes  which  belong  respectively  to  different 
persons  from  the  surface  to  the  centre  of  the  earth,  the  law  of  Eng- 
land has  long  settled  the  degree  of  lateral  support  which  each  may 
claim  from  the  other;  and  the  principle  upon  which  this  rests  may 
guide  us  to  a  safe  solution  of  the  question  now  before  us. 

In  2  Eolle's  Abridgment,  564,  tit.  Trespass  (1),  pi.  1,  it  is  said: 
"  If  A,  seised  in  fee  of  copyhold  land  next  adjoining  land  of  B,  erect 
a  new  house  on  his  copyhold  land"  (I  may  remark  that  the  circum- 
stance of  A's  land  being  copyhold  is  wholly  immaterial),  "and  part 
of  the  house  is  erected  on  the  confines  of  his  land  next  adjoining  the 
land  of  B,  if  B  afterwards  digs  his  land  near  to  the  foundation  of  the 
house  of  A,  but  not  touching  the  land  of  A,  whereby  the  foundation 
of  the  house  and  the  house  itself  fall  into  the  pit,  still  no  action  lies 


552  HUMPHRIES    V.    BROGDEN.  [CHAP.   XV. 

at  the  suit  of  A  against  B,  because  this  was  the  fault  of  A  himself 
that  he  built  his  house  so  near  to  the  land  of  B,  for  he  could  not  by 
his  act  hinder  B  from  making  the  most  profitable  use  of  B's  own  land. 
Easter  Term,  15  Car.  B.  R.,  Wilde  v.  Minsterley.  But  serable  that  a 
man  who  has  land  next  adjoining  to  my  land  cannot  dig  his  land  so 
near  to  my  land  that  thereby  my  land  shall  fall  into  his  pit;  and  for 
this,  if  an  action  were  brought,  it  would  lie."  This  doctrine  is  recog- 
nized by  Lord  C.  B.  Comyns,  Com.  Dig.,  Action  upon  the  Case  for  a 
Nuisance  (A)  ;  by  Lord  Tenterden,  in  Wyatt  v.  Harrison,  3  B.  &  Ad. 
871,  876;  and  by  other  eminent  judges.  It  stands  on  natural  jus- 
tice, and  is  essential  to  the  protection  and  enjoyment  of  property  in 
the  soil.  Although  it  places  a  restraint  on  what  a  man  may  do  with 
his  own  property,  it  is  in  accordance  with  the  precept,  sic  utere  tuo 
ut  alienum  non  Isedas.  As  is  well  observed  by  a  modern  writer :  "  If 
the  neighboring  owners  might  excavate  their  soil  on  every  side  up 
to  the  boundary  line  to  an  indefinite  depth,  land  thus  deprived  of 
support  on  all  sides  could  not  stand  by  its  own  coherence  alone."  Gale 
on  Easements,  p.  216. 

This  right  to  lateral  support  from  adjoining  soil  is  not,  like  the 
support  of  one  building  upon  another,  supposed  to  be  gained  by  a 
right  of  property  passing  with  the  soil.  If  the  owner  of  two  adjoin- 
ing closes  conveys  away  one  of  them,  the  alienee,  without  any  grant 
for  that  purpose,  is  entitled  to  the  lateral  support  of  the  other  close 
the  very  instant  when  the  conveyance  is  executed  as  much  as  after  the 
expiration  of  twenty  years,  or  any  longer  period.  Pari  ratione,  where 
there  are  separate  freeholds  from  the  surface  of  the  land  and  the 
minerals  belonging  to  different  owners,  we  are  of  opinion  that  the 
owner  of  the  surface,  while  unincumbered  by  buildings  and  in  its 
natural  state,  is  entitled  to  have  it  supported  by  the  subjacent  mineral 
strata.  Those  strata  may,  of  course,  be  removed  by  the  owner  of  them, 
so  that  a  sufficient  support  for  the  surface  is  left ;  but,  if  the  surface 
subsides,  and  is  injured  by  the  removal  of  these  strata,  although,  on 
the  supposition  tliat  tlie  surface  and  the  minerals  belong  to  the  same 
owner,  the  operation  may  not  have  been  conducted  negligently  nor 
contrary  to  the  custom  of  the  country,  the  owner  of  the  surface  may 
maintain  an  action  against  the  owner  of  the  minerals  for  the  damage 
sustained  by  the  subsidence.  Unless  the  surface  close  be  entitled  to 
this  support  from  the  close  underneath,  corresponding  to  the  lateral 
support  to  which  it  is  entitled  from  the  adjoining  surface  close,  it 
cannot  be  securely  enjoyed  as  property;  and  under  certain  circum- 
stances, as  where  the  mineral  strata  approach  the  surface  and  are 
of  groat  thickness,  it  might  be  entirely  destroyed.  We  likewise  think 
that  the  rule  giving  the  right  of  support  to  the  surface  upon  the  min- 
erals, in  the  absence  of  any  express  grant,  reservation,  or  covenant, 
must  be  laid  down  generally  without  reference  to  tlie  nature  of  the 
strata,  or  the  dillicully  of  i)roj)ping  up  the  surface,  or  the  compara- 


CHAP.    XV.]  VIOLATION   OF    RIGHTS    OF    SUPPORT.  553 

tive  value  of  the  surface  and  the  minerals.  We  are  not  aware  of  any 
principle  upon  which  qualifications  could  be  added  to  the  rule;  and 
the  attempt  to  introduce  them  would  lead  to  uncertainty  and  litiga- 
tion. Greater  inconvenience  cannot  arise  from  this  rule  in  any  case 
than  that  which  may  be  experienced  where  the  surface  belongs  to  one 
owner  and  the  minerals  to  another,  who  cannot  take  any  portion  of 
them  without  the  consent  of  the  owner  of  the  surface.  In  such  cases 
a  hope  of  reciprocal  advantage  will  bring  about  a  compromise  to  the 
parties  and  to  the  public. 

Something  has  been  said  of  a  right  to  a  reasonable  support  for  the 
surface;  but  we  cannot  measure  out  degrees  to  which  the  right  may 
extend;  and  the  only  reasonable  support  is  that  which  will  protect  the 
surface  from  subsidence,  and  keep  it  securely  at  its  ancient  and 
natural  level. 

The  defendant's  counsel  have  argued  that  the  analogy  as  to  the 
support  to  which  one  superficial  close  is  entitled  from  the  adjoining 
superficial  close  cannot  apply  where  the  surface  and  the  minerals  are 
separate  tenements,  belonging  to  different  owners,  because  there  must 
have  been  unity  of  title  of  the  surface  and  the  minerals,  and  the  rights 
of  the  parties  must  depend  upon  the  contents  of  the  deeds  by  which 
they  were  severed.  But,  in  contemplation  of  law,  all  property  in  land 
having  been  in  the  Crown,  it  is  easy  to  conceive  that,  at  the  same 
time,  the  original  grant  of  the  surface  was  made  to  one,  and  the 
minerals  under  it  to  another,  without  any  express  grant  or  reservation 
of  any  easement.  Suppose  (what  has  generally  been  the  fact)  that 
there  has  been  in  a  subject  unity  of  title  from  the  surface  to  the 
centre;  if  the  surface  and  the  minerals  are  vested  in  different  owners 
without  any  deeds  appearing  to  regulate  their  respective  rights,  we 
see  no  difficulty  in  presuming  that  the  severance  took  place  in  a  man- 
ner which  would  confer  upon  the  owner  of  the  surface  a  right  to  the 
support  of  the  minerals.  If  the  owner  of  the  entirety  is  supposed  to 
have  alienated  the  surface,  reserving  the  minerals,  he  cannot  be  pre- 
sumed to  have  reserved  to  himself,  in  derogation  of  his  grant,  the 
power  of  removing  all  the  minerals  without  leaving  a  support  for  the 
surface ;  and,  if  he  is  supposed  to  have  alienated  the  minerals,  reserv- 
ing the  surface,  he  cannot  be  presumed  to  have  parted  with  the  right 
to  that  support  for  the  surface  by  the  minerals  which  it  had  ever  be- 
fore enjoyed.  Perhaps  it  may  be  said  that,  if  the  grantor  of  the  min- 
erals, reserving  the  surface,  seeks  to  limit  the  right  of  the  grantee  to 
remove  them,  he  is  acting  in  derogation  of  his  grant,  and  is  seeking 
to  hinder  the  grantee  from  doing  what  he  likes  with  his  own:  but, 
generally  speaking,  mines  may  be  profitably  worked,  leaving  a  support 
to  the  surface  by  pillars  or  ribs  of  the  minerals,  although  not  so 
profitably  as  if  the  whole  of  the  minerals  be  removed;  and  a  man 
must  so  use  his  own  as  not  to  injure  his  neighbor. 

The  books  of  reports  abound  with  decisions  restraining  a  man's 


554  HUMPHRIES    V.    BROGDEN.  [CHAP.   XV. 

act  upon  and  with  his  own  property,  where  the  necessary  or  probable 
consequence  of  such  acts  is  to  do  damage  to  others.  The  case  of 
common  occurrence  nearest  to  the  present  is,  where  the  upper  story  of 
a  house  belongs  to  one  man,  and  the  lower  to  another.  The  owner 
of  the  upper  story,  without  any  express  grant,  or  enjoyment  for  any 
given  time,  has  a  right  to  the  support  of  the  lower  story.  If  this 
arises  (as  has  been  said)  from  an  implied  grant  or  covenant,  why  is 
not  a  similar  grant  or  covenant  to  be  implied  in  favor  of  the  owner 
of  the  surface  of  land  against  the  owner  of  the  minerals?  If  the 
owner  of  an  entire  house,  conveying  away  the  lower  story  only,  is, 
without  any  express  reservation,  entitled  to  the  support  of  the  lower 
story  for  the  benefit  of  the  upper  story,  why  should  not  an  owner  of 
land,  who  conveys  away  the  minerals  only,  be  entitled  to  the  support 
of  the  minerals  for  the  benefit  of  the  surface? 

I  will  now  refer,  in  chronological  order,  to  the  cases  which  were 
cited  in  the  argument;  and  I  think  that  none  of  them  will  be  found 
in  any  degree  to  impugn  the  doctrine  on  which  our  decision  rests. 

In  Bateson  v.  Green,  5  T.  R.  411,  Buller,  J.,  says:  "Where  there 
are  two  distinct  rights,  claimed  by  different  parties,  which  encroach 
on  each  other  in  the  enjoyment  of  them,  the  question  is.  Which  of  the 
two  rights  is  subservient  to  the  other  ?  "  And  it  was  held  that  the 
lord  may  dig  clay-pits  on  a  common,  or  empower  others  to  do  so, 
without  leaving  sufficient  herbage  for  the  commoners,  if  such  right  can 
be  proved  to  have  been  always  exercised  by  the  lord.  So,  here,  the 
right  of  the  owner  of  the  minerals  to  remove  them  may  be  subservient 
to  the  right  of  the  owner  of  the  surface  to  have  it  supported  by  them. 

Peyton  v.  The  Mayor,  &c.,  of  London,  9  B.  &  C.  725,  was  cited  to 
show  the  necessity  for  introducing  into  the  declaration  an  averment 
that  the  plaintiff  was  entitled  to  the  easement  or  right  which  is  the 
foundation  of  the  action :  but  the  easement  there  claimed  was  a  right 
of  support  of  one  building  upon  another,  which  could  arise  only  from 
a  grant,  actual  or  implied ;  and  there  Lord  Tenterden  says :  "  The 
declaration  in  this  case  does  not  allege  as  a  fact  that  the  plaintiffs 
were  entitled  to  have  their  house  supported  by  the  defendants'  house, 
nor  does  it  in  our  opinion  contain  any  allegation  from  which  a  title 
to  such  support  can  be  inferred  as  a  matter  of  law."  In  the  case  at 
bar,  we  are  of  opinion  that  the  declaration  alleges  facts  from  which 
the  law  infers  the  right  of  support  which  the  plaintiff  claims. 

Wyatt  V.  Harrison,  3  B.  &  Ad.  871,  decided  that  the  owner  of  a 
house,  recently  erected  on  the  extremity  of  his  land,  could  not  main- 
tain an  action  against  the  owner  of  the  adjoining  land  for  digging  in 
his  own  land  so  near  to  the  plaintiff's  house  that  the  house  fell  down; 
but  tbe  reason  given  is,  that  the  plaintiff  could  not,  by  putting  an 
adfjitional  weight  upon  this  land,  and  so  increasing  the  lateral  pres- 
sure upon  the  defendant's  land,  render  unlawful  any  operation  in  the 
defendant's  land  which  before  would  have  caused  no  damage;  and  the 


CHAP.    XV.]  VIOLATION    OF    KIGHTS    OF    SUPPORT.  555 

court  intimated  an  opinion  that  the  action  would  have  been  main- 
tainable, not  only  if  tlie  defendant's  digging  would  have  made  the 
plaintiff's  land  crumble  down  unloaded  by  any  building,  but  even  if 
the  house  had  stood  twenty  years.  Where  a  house  has  been  supported 
more  than  twenty  years  by  land  belonging  to  another  proprietor, 
with  his  knowledge,  and  he  digs  near  the  foundation  of  the  house, 
whereby  it  falls,  he  is  liable  to  an  action  at  the  suit  of  the  owner 
of  the  house.  Stansell  v.  Jollord,  1  Selw.  Ni.  Pri.  457  (11th  ed.), 
and  Hide  v.  Thornborough,  2  Carr.  &  Kir.  250.  Although  there  may 
be  some  difficulty  in  discovering  whence  the  grant  of  the  easement 
in  respect  of  the  house  is  to  be  presumed,  as  the  owner  of  the  adjoin- 
ing land  cannot  prevent  its  being  built,  and  may  not  be  able  to  dis- 
turb the  enjoyment  of  it  without  the  most  serious  loss  or  incon- 
venience to  himself,  the  law  favors  the  preservation  of  enjoyments 
acquired  by  the  labor  of  one  man  and  acquiesced  in  by  another  who 
has  the  power  to  interrupt  them;  and  as,  on  the  supposition  of  a 
grant,  the  right  to  light  may  be  gained  from  not  erecting  a  wall 
to  obstruct  it,  the  right  to  support  for  a  new  building  erected  near 
the  extremity  of  the  owner's  land  may  be  explained  on  the  same 
principle. 

In  Dodd  V.  Holme,  1  A.  &  E.  493,  where  there  is  a  good  deal  of 
discussion  respecting  the  rights  of  owners  of  adjoining  lands  or 
houses,  no  point  of  law  was  determined,  as  the  case  turned  upon  the 
allegation  in  the  declaration  that  the  defendants  dug  "  carelessly, 
negligently,  unskilfully,  and  improperly,"  whereby  "  the  foundations 
and  walls"  of  the  plaintiff's  house  gave  way.  The  plaintiff's  house 
was  proved  to  have  been  in  a  very  bad  condition;  but  Lord  Denman 
said  that  the  defendant  had  no  right  to  accelerate  its  fall. 

The  Court  of  Exchequer,  in  Partridge  v.  Scott,  3  M.  &  W.  220,  con- 
curred in  the  law  before  laid  down  in  this  court,  that  a  right  to  the 
support  of  the  foundation  of  a  house  from  adjoining  land  belonging 
to  another  proprietor  can  only  be  acquired  by  grant,  and  that,  where 
the  house  was  built  on  excavated  land,  a  grant  is  not  to  be  presumed 
till  the  house  has  stood  twenty  years  after  notice  of  the  excavation  to 
the  person  supposed  to  have  made  the  grant;  but  nothing  fell  from 
any  of  the  judges  questioning  the  right  to  support  which  land,  while 
it  remains  in  its  natural  state,  has  been  said  to  be  entitled  to  from 
the  adjoining  land  of  another  proprietor.  Some  land  of  the  plain- 
tiff's, not  covered  with  buildings,  had  likewise  sunk,  in  consequence 
of  the  defendant's  operations  in  his  own  land;  but  the  court,  in 
directing  a  verdict  to  be  entered  for  the  defendants  on  the  whole 
declaration,  seems  to  have  thought  that  the  sinking  of  the  plaintiff's 
land  was  consequential  upon  the  fall  of  the  house,  or  would  not  have 
taken  place  if  his  own  land  had  not  been  excavated. 

The  judges  in  the  Exchequer  Chamber  held,  upon  a  writ  of  error 
from  the  Court  of  Common  Pleas,  in  Chadwick  v.  Trower,  6  New 


556  HUMPHRIES    V.   BROGDEN.  [CHAP.    XV. 

Ca.  1  (  see  Trover  v.  Chadwick,  3  New  Ca.  334),  that  the  mere  cir- 
cumstance of  juxtaposition  does  not  render  it  necessary  for  a  per- 
son who  pulls  down  his  wall  to  give  notice  of  his  intention  to  the 
owner  of  an  adjoining  wall  which  rests  upon  it,  and  that  he  is  not 
even  liable  for  carelessly  pulling  down  his  wall,  if  he  had  not  notice 
of  the  existence  of  the  adjoining  wall;  but  this  decision  proceeds 
upon  the  want  of  any  allegation  or  proof  of  a  right  of  the  plaintiff  to 
have  his  wall  supported  by  the  defendant's,  and  does  not  touch  the 
right  or  obligation  of  conterminous  proprietors,  where  the  tenement 
to  be  supported  remains  in  its  natural  condition. 

Next  comes  the  valuable  case  of  Harris  v.  Eyding,  5  M.  &  W.  60, 
which  would  be  a  direct  authority  in  favor  of  the  present  plaintiff  if 
it  did  not  leave  some  uncertainty  as  to  the  effect  of  the  averment  in 
the  declaration,  of  working  "  carelessly,  negligently,  and  improperly," 
and  as  to  whether  the  plaintiff  was  considered  absolutely  entitled  to 
have  his  land  supported  by  the  subjacent  strata,  to  whatever  degree 
the  affording  of  this  support  might  interfere  with  the  defendant's 
right  to  work  the  minerals.  There  one  seised  in  fee  of  land  conveyed' 
away  the  surface,  reserving  to  himself  the  minerals,  with  power  to 
enter  upon  the  surface  to  work  them ;  and  it  is  said  to  have  been  held 
that,  under  this  reservation,  he  was  not  entitled  to  take  all  the  min- 
erals, but  only  so  much  as  "  could  be  got,  leaving  a  reasonable  sup- 
port to  the  surface,"  p.  70.  The  case  was  decided  upon  a  demurrer 
to  certain  pleas  justifying,  under  the  reservation,  and  the  declara- 
tion alleged  careless,  negligent,  and  improper  working,  which  there 
must  be  considered  as  admitted,  whereas  here  it  is  negatived  by  the 
verdict;  but  the  barons,  in  the  very  comprehensive  and  masterly 
judgment  which  they  delivered  seriatim,  seem  all  to  have  thought 
that  the  reservation  of  the  minerals  would  not  have  justified  the 
defendant  in  depriving  the  surface  of  a  complete  support,  however 
carefully  he  might  have  proceeded  in  removing  them.  Lord  Abinger 
says :  "  The  plea  is  no  answer,  because  it  does  not  set  forth  any  suf- 
ficient ground  to  justify  the  defendant  in  working  the  mines  in  such 
a  manner  as  not  to  leave  sufficient  support  for  the  land  above,  which 
is  alleged  by  the  declaration  to  be  a  careless,  negligent,  and  improper 
mode  of  working  them."  Parke,  B.,  observes :  "  It  never  could  have 
been  in  the  contemplation  of  the  parties  that,  by  virtue  of  this  reserva- 
tion of  the  mines,  tlie  grantor  should  be  entitled  to  take  the  whole 
of  the  coal  and  let  down  the  surface  or  injure  the  enjoyment  of  it;" 
and  again:  "This  plea  is  clearly  bad,  because  the  defendants  do  not 
assign  that  in  taking  away  the  coal  they  did  leave  a  sufficient  sup- 
port for  the  surface  in  its  then  state."  "  The  question  is,"  says 
Aldorson,  P>.,  "  whether  the  grantor  is  not  to  get  the  minerals  which 
belong  to  him,  and  which  he  has  reserved  to  himself  the  right  of 
getting,  in  tbat  reasonable  and  ordinary  mode  in  which  he  would 
be  authorized  to  get  them,  provided  he  leaves  a  proper  support  for 


CHAP.    XV.]  VIOLxVTlON    OF    RIGHTS    OF    SUPPORT.  557 

the  land  which  the  other  party  is  to  enjoy  ?  "  My  brother  Maule, 
then  a  judge  of  the  Court  of  Exchequer,  says,  in  the  course  of  his 
luminous  judgment :  "  The  right  of  the  defendants  to  get  the  mines 
is  the  right  of  the  mine-owners  as  against  the  owner  of  the  land  which 
is  above  it.  That  right  appears  to  me  to  be  very  analogous  to  that  of 
a  person  having  a  room  in  a  house  over  another  man's  room,  or  an 
acre  of  land  adjoining  another  man's  acre  of  land."  Parke,  B.,  that 
he  might  not  be  misunderstood  as  to  the  right  of  the  owner  of  the 
surface,  afterwards  adds :  "I  do  not  mean  to  say  that  all  the  coal 
does  not  belong  to  the  defendants,  but  that  they  cannot  get  it  without 
leaving  sufficient  support."  It  seems  to  have  been  the  unanimous 
opinion  of  the  court  that  there  existed  the  natural  easement  of  sup- 
port for  the  upper  soil  from  the  soil  beneath,  and  that  the  entire 
removal  of  the  inferior  strata,  however  skilfully  done,  would  be 
actionable,  if  productive  of  damage  by  withdrawing  that  degree  of 
support  to  which  the  owner  of  the  surface  was  entitled,  the  duty  of 
the  owner  of  the  servient  tenement  forbidding  him  to  do  any  act 
whereby  the  enjoyment  of  the  easement  could  be  disturbed. 

The  counsel  for  the  defendant  cited  and  relied  much  upon  the 
case  of  Acton  v.  Blundell,  12  M.  &  W.  324,  in  which  it  was  held  that 
a  landowner,  who,  by  mining  operations  in  his  own  lands,  diverts  a 
subterraneous  current  of  water,  is  not  liable  to  an  action  at  the  suit 
of  the  owmer  of  the  adjoining  land,  whose  well  is  thereby  laid  dry. 
But  the  right  to  running  water  and  the  right  to  have  land  supported 
are  so  totally  distinct,  and  depend  upon  such  different  principles, 
that  there  can  be  no  occasion  to  show  at  greater  length  how  the  de- 
cision is  inapplicable. 

We  have  now  to  mention  the  case  of  Hilton  v.  Lord  Granville,  5  Q. 
B.  701.  A  writ  of  error  may  probably  be  brought  in  this  case,^  when 
all  the  issues  of  fact  have  been  disposed  of;  and  nothing  which  I 
now  say  is  to  preclude  me  from  forming  any  opinion  upon  it,  should 
I  ever  hear  it  argued.  If  well  decided,  the  plaintiff  is  justified  in 
relying  upon  it;  for  it  is  strongly  in  point.  This  court  there  held  that 
a  prescription  or  a  custom  within  a  manor  for  the  lord,  who  is  seised 
in  fee  of  the  mines  and  collieries  therein,  to  work  them  under  any 
dwelling-house,  buildings,  and  lands,  parcel  of  the  manor,  doing  no 
unnecessary  damage,  and  paying  to  the  tenants  and  occupiers  of  the 
surface  of  lands  damaged  thereby  a  reasonable  compensation  for  the 
use  of  the  surface  of  the  lands,  but  without  making  compensation 
for  any  damage  occasioned  to  any  dwelling-houses  or  other  buildings 
within  or  parcel  of  the  manor  by  or  for  the  purpose  of  working  the 
said  mines  and  collieries,  is  void  as  being  unreasonable.  Lord  Den- 
man,  C.  J.,  said :  "  A  claim  destructive  of  the  subject-matter  of  the 
grant  cannot  be  set  up  by  any  usage.  Even  if  the  grant  could  be 
produced   in   specie,   reserving  a  right  in  the   lord  to  deprive  his 

1  See  12  Q.  B.  737,  note. 


558  HUMPHRIES    V.    BROGDEN.  [CHAP.   XV. 

grantee  of  the  enjoyment  of  the  thing  granted,  such  a  clause  must 
be  rejected  as  repugnant  and  absurd.  That  the  prescription  or  cus- 
tom here  pleaded  has  this  destructive  effect,  and  is  so  repugnant  and 
void,  appears  to  us  too  clear  from  the  simple  statement  to  admit  of 
illustration  by  argument." 

The  most  recent  case  referred  to  was  Smith  v.  Kenriek,  7  C.  B. 
515,  564,  in  which  the  Court  of  Common  Pleas,  after  great  delibera- 
tion, held  that  it  is  the  right  of  each  of  the  owners  of  adjoining 
mines,  where  neither  mine  is  subject  to  any  servitude  to  the  other, 
to  work  his  own  mine,  as  far  as  the  flow  of  water  is  concerned,  in 
the  manner  which  he  deems  most  convenient  and  beneficial  to  him- 
self, although  the  natural  consequence  may  be  that  some  prejudice 
will  accrue  to  the  owner  of  the  adjoining  mine;  so  tliat  such  preju- 
dice does  not  arise  from  the  negligent  or  malicious  conduct  of  his 
neighbor.  But  no  question  arose  there  respecting  any  right  to  sup- 
port ;  the  controversy  being  only  respecting  the  obligation  to  pro- 
tect an  adjoining  mine  from  water  which  may  flow  into  it  by  force 
of  gravitation.  And  in  the  very  learned  judgment  of  the  court,  de- 
livered by  my  brother  Cresswell,  there  is  nothing  laid  down  to  counte- 
nance the  doctrine  that,  in  a  case  circumstanced  like  this  which  we 
have  to  determine,  the  owner  of  the  minerals  may,  if  not  charge- 
able with  malice  or  negligence,  remove  them  so  as  to  destroy  or  dam- 
age the  surface  over  them  which  belongs  to  another. 

We  have  attempted,  without  success,  to  obtain  from  the  codes  and 
jurists  of  other  nations  information  and  assistance  respecting  the 
rights  and  obligations  of  persons  to  whom  sections  of  the  soil,  divided 
horizontally,  belong  as  separate  properties.  This  penury,  where  the 
subject  of  servitudes  is  so  copiously  and  discriminately  treated,  prob- 
ably proceeds  from  the  subdivision  of  the  surface  of  the  land  and  the 
minerals  under  it  into  separate  holdings  being  peculiar  to  England. 
Had  such  subdivision  been  known  in  countries  under  the  jurisdiction 
of  the  Eoman  civil  law,  its  incidental  rights  and  duties  must  have  been 
exactly  defined  where  we  discover  the  right  of  adjoining  proprietors 
of  lands  to  support  from  lateral  pressure  leading  to  such  minute 
regulations  as  the  following :  "  Si  quis  sepem  ad  alienum  praedium 
fixerit,  infoderitque,  terminum  ne  excedito:  si  maceriam,  pedem  re- 
linquito:  si  vero  domum,  pedes  duos:  si  sepulchrum  aut  scrobem 
foderit,  quantum  profunditatis  habuerint,  tantum  spatii  relinquito: 
si  puteum,  passus  latitudinem."  Dig.  lib.  x.,  tit.  1  (Finium  regun- 
dorum),  1.  13. 

Tbo  Code  Napoleon  likewise  recognizes  the  support  to  which  the 
owners  of  adjoining  lands  are  reciprocally  entitled,  but  contains  noth- 
ing which  touches  the  question  for  our  decision  more  closely  than  the 
following  article  on  "  Natural  Servitudes."  ^  "  Les  fonds  inferieurs 
.sont  asHujettis,  en  vers  ceux  qui  sont  y)lus  61ev6s,  a  recevoir  les  eaux 

•  "  Hcrvltiidi'H  qui  d<'Tlvont  do  la  situation   dcs  lloiix." 


CHAP.    XV.]  VIOLATION    OF    RIGHTS    OF    SUITOKT.  559 

qui  en  decoulent  naturellement  sans  que  la  main  de  rhomme  y  ait 
contribue."  "  Le  proprietaire  superieur  ne  pcut  rien  faire  qui  ag- 
grave  la  servitude  du  fonds  inferieur."  Code  Civil,  liv.  2,  tit.  iv.  ch.  1, 
art.  640.  But  reference  is  here  made  to  adjoining  fields  on  a  declivity, 
not  to  the  surface  of  land  and  the  minerals  being  held  by  different 
proprietors. 

The  American  lawyers  write  learnedly  on  the  support  which  may 
be  claimed  for  land  from  lateral  pressure  and  for  buildings  which 
have  long  rested  against  each  other,  but  are  silent  as  to  the  support 
which  the  owner  of  the  surface  of  lands  may  claim  from  the  subjacent 
strata  when  possessed  by  another.  See  Kent's  Commentaries,  part 
vi.  lecture  lii.  vol.  iii.  p.  434,  ed.  1840. 

However,  in  Erskine's  Institutes  of  the  Law  of  Scotland,  treat- 
ing of  the  servitude  Oneris  ferendi,  the  very  learned  author  has 
the  following  passage,  which  well  illustrates  the  principle  on  which 
our  decision  is  founded :  — 

"  Where  a  house  is  divided  into  different  floors  or  stories,  each  floor 
belonging  to  a  different  owner,  which  frequently  happens  in  the  city 
of  Edinburgh,  the  proprietor  of  the  ground  floor  is  bound  merely  by 
the  nature  and  condition  of  his  property,  without  any  servitude,  not 
only  to  bear  the  weight  of  the  upper  story,  but  to  repair  his  own 
property,  that  it  may  be  capable  of  bearing  that  weight."  "  The  pro- 
prietor of  the  ground  story  is  obliged  to  uphold  it  for  the  support  of 
the  upper,  and  the  owner  of  the  upper  must  uphold  that  as  a  roof 
or  cover  to  the  lower."  Book  ii.  tit.  9,  s.  11,  vol.  i.  p.  433  (Ivory's  ed. 
1828). 

For  these  reasons,  we  are  all  of  opinion  that  the  present  action  is 
maintainable,  notwithstanding  the  negation  of  negligence  in  the  work- 
ing of  the  mines ;  and  that  the  rule  to  enter  a  verdict  for  the  defendant 
must  be  discharged.  We  need  hardly  say  that  we  do  not  mean  to  lay 
down  any  rule  applicable  to  a  case  where  the  prima  facie  rights  and 
liabilities  of  the  owner  of  the  surface  of  the  land  and  of  the  sub- 
jacent strata  are  varied  by  the  production  of  title-deeds  or  by  other 
evidence. 

Rule  discharged. 


;Q0  SPHlXGilELD    V.    HARRIS.  [CHAP.   XVI. 


CHAPTER  XVI. 

VIOLATION  OF  WATER  RIGHTS. 

SPRINGFIELD  v.  HARRIS. 
Supreme  Court  of  Massachusetts,  September,  1861.    4  Allen,  494. 

Tort  by  the  City  of  Springfield  for  the  obstruction  of  a  natural 
stream  of  water  by  means  of  a  dam. 

At  the  trial  in  the  Superior  Court,  before  Vose,  J.,  there  was 
evidence  to  show  the  uses  which  the  plaintiffs  have  heretofore  made 
of  the  water  of  the  stream,  where  it  crosses  Main  Street  in  the  city 
of  Springfield,  below  the  defendant's  land,  and  the  method  in  which 
the  defendant  has  used  and  obstructed  the  same;  and  it  was  a  ques- 
tion in  dispute  whether  the  plaintiffs  had  established  a  title  to  Main 
Street.  Upon  the  evidence  in  respect  to  the  latter  question,  the  facts 
not  being  denied,  the  Judge  ruled  that  the  plaintiffs  had  not  made 
out  their  title,  and  he  directed  the  jury  to  return  a  verdict  for  the  de- 
fendant, and  also  to  answer  the  two  following  questions:  "1.  Is  the 
dam  of  the  defendant  of  such  magnitude  as  is  adapted  to  the  size  and 
capacity  of  the  stream,  and  to  the  quantity  of  water  usually  flow- 
ing therein?  2.  Is  the  mode  of  using  the  dam  by  the  defendant,  by 
closing  the  gate  at  night  for  the  purpose  of  letting  the  pond  fill,  an  un- 
usual and  unreasonable  use,  according  to  the  general  custom  of  the 
country  in  cases  of  dams  upon  similar  streams  ? "  The  judge  in- 
structed the  jury  that,  in  answering  these  questions,  they  were  to 
decide  as  practical  men,  upon  the  evidence  in  the  case,  with  their 
judgments  aided  by  the  testimony  of  the  experts,  and  the  evidence 
relative  to  the  general  usage  or  custom  of  the  country,  or  to  dams 
upon  similar  streams,  and  by  their  own  view  of  the  premises,  and  that 
they  were  not  to  take  into  view  the  riglits  claimed  by  the  plaintiffs 
in  determining  the  facts  involved  in  these  inquiries. 

The  plaintiffs  made  no  objections  to  these  instructions,  and  did 
not  ask  for  any  others;  and  the  jury  answered  the  first  question  in 
the  affirmative,  and  the  second  in  the  negative. 

To  the  ruling  of  the  judge  directing  the  jury  to  return  a  verdict 
for  the  defendant,  the  plaintiff."  alleged  exceptions. 

Mf.huick,  J.  It  appears  from  the  pleadings,  and  from  the  facts 
Btatod  in  the  bill  of  exceptions,  that  Garden  Brook  is  a  natural  stream 
running  by  and  over  the  land  of  the  defendant,  and  thence  through 
Main   Street  in  tbc  city  of  Springfield.     The  plaintiffs  claim  to  be 


CHAP.    XVI.]  VIOLATION    OF    WATER   RIGHTS.  561 

owners  in  fee  of  all  the  land  included  within  the  limits  of  said  street, 
and  that  they  arc  entitled  to  have  the  water  flow  in  said  stream  at 
all  times  without  obstruction,  in  order  that  they  may  use  it,  as  they 
have  a  right  to  do,  for  sewerage,  for  extinguishing  fires,  and  for  all 
other  purposes  essential  to  the  health  and  safety  of  the  city.  The 
defendant  is  the  owner  and  occupant  of  a  mill  standing  upon  his 
said  land;  and  he  admits  that  during  the  whole  period  in  which  the 
obstruction  complained  of  is  alleged  to  have  occurred,  he  has,  in 
operating  his  mill  and  the  works  contained  in  it,  used  the  water  of 
said  stream  by  means  of  a  dam,  which  for  that  purpose  he  has  erected 
and  maintained  across  it.  The  plaintiffs  in  their  declaration  allege 
that  this  dam  was  and  is  "  of  a  larger  magnitude  than  is  adapted  to 
the  size  and  capacity  of  the  stream,  and  to  the  quantity  of  water 
usually  flowing  therein."  And  this  is  the  particular  grievance  of 
which  they  complain,  and  which  they  set  forth  as  their  cause  of 
action  against  the  defendant. 

The  action  can  be  maintained  only  by  the  proof  of  this  material 
allegation;  for  the  defendant  had  a  right  to  use  the  water  in  a 
reasonable  and  lawful  manner  to  work  and  operate  his  mill,  whatever 
might  be  the  effect  of  such  use  in  reference  to  any  easement  to  which 
proprietors  of  land  situate  at  any  point  below  it  might  otherwise  be 
entitled.  Each  proprietor  of  land  through  which  a  natural  water- 
course flows  has  a  right  as  owner  of  such  land,  and  as  inseparal)ly  con- 
nected with  and  incident  to  it,  to  the  natural  flow  of  the  stream  for 
any  hydraulic  purpose  to  which  he  may  think  fit  to  apply  it;  and  it 
is  a  necessary  consequence  from  this  principle  that  such  proprietor 
cannot  be  held  responsible  for  any  injurious  consequences  which  re- 
sult to  others,  if  the  water  is  used  in  a  reasonable  manner,  and  the 
quantity  used  is  limited  by,  and  does  not  exceed,  what  is  reasonably 
and  necessarily  required  for  the  operation  and  propulsion  of  works 
of  such  character  and  magnitude  as  are  adapted  and  appropriate  to 
the  size  and  capacity  of  the  stream  and  the  quantity  of  water  usually 
flowing  therein.  Thurber  v.  Martin,  2  Gray,  394;  Gould  v.  Boston 
Duck  Co.,   13   Gray,  442;  Tourtellot  v.   Phelps,  4   Gray,  376. 

The  jury  having  found,  under  instructions  in  matter  of  law  which 
are  admitted  to  have  been  correct  and  unobjectionable,  that  the  plain- 
tiffs have  failed  to  establish  the  material  allegations  in  their  declara- 
tion relative  to  the  dam  erected  and  maintained  by  the  defendant 
across  the  stream,  and  having  also  found  that  the  said  dam  is  only 
of  such  magnitude  as  is  adapted  to  the  size  and  capacity  of  the 
stream  and  to  the  quantity  of  water  usually  flowing  therein,  and  that 
the  manner  in  which  he  used  the  water  was  not  an  unusual  or  un- 
reasonable use  of  it,  according  to  the  general  custom  of  the  country 
in  cases  of  clams  upon  similar  streams,  it  is  obvious  that  the  plain- 
tiffs were  not  entitled  to  recover  any  damages,  and  therefore  that 
the  verdict  was  properly  rendered  for  the  defendant. 


562  ELLIOT    V.    FITCHBURG   R.    CO.  [CHAP.    XVI. 

It  is  objected  that  the  court  erred  in  ruling  that  the  plaintiffs 
had  not  upon  the  evidence  shown  that  they  had  acquired  any  prescrip- 
tive right  to  the  water  in  the  brook,  and  in  directing  the  jury  for 
that  reason  to  return  a  verdict  for  the  defendants.  It  would  have 
been  more  regular  to  reserve  these  directions,  which  were  predicated 
wholly  upon  questions  of  law,  and  to  submit  to  the  jury  the  ques- 
tions of  fact  in  issue,  which  were  specially  submitted  to  them  with 
instructions  that  if  they  found  the  first  in  the  affirmative  and  the 
second  in  the  negative,  they  should  in  that  case  render  a  verdict  for 
the  defendant.  But  as  we  do  not  perceive  that  the  plaintiffs  were  at 
all  prejudiced  or  subjected  to  any  disadvantage  by  the  course  pursued, 
such  irregularity  affords  no  sufficient  cause  for  disturbing  the  verdict, 
which  was  rendered  exclusively  upon  particular  questions  of  fact  which 
were  wholly  independent  of  and  distinct  from  the  questions  of  law. 
And  as  the  finding  of  the  jury  upon  those  particular  questions  makes 
it  certain  that  the  plaintiffs  could  in  no  event  maintain  their  action,  it 
becomes  unnecessary  to  consider  whether  the  ruling  of  the  court  in 
relation  to  the  plaintiffs'  alleged  title  was  correct;  for  whether  they 
owned  the  soil,  or  had  acquired  any  prescriptive  right  to  the  use  of 
the  water,  or  were  mere  riparian  proprietors,  it  is  obvious  that  judg- 
ment must  necessarily,  upon  the  finding  of  the  jury  upon  those  ques- 
tions of  fact,  be  rendered  for  the  defendant. 

Exceptions  overruled. 


ELLIOT  V,  THE  FITCHBURG  RAILROAD  COMPANY. 

Supreme  Coiirt  of  Massachusetts,  October,  1852.     10  Gush.  191. 

This  action  was  tried  in  this  court,  at  the  October  term,  1849,  be- 
fore Metcalf,  J.,  under  whose  rulings  a  verdict  was  found  for  the  de- 
fendants. The  plaintiff  excepted  to  the  rulings  and  instructions, 
which,  with  the  facts  of  the  case,  sufficiently  appear  in  the  opinion. 

Shaw,  C.  J.  This  is  an  action  of  the  case  against  the  defendants, 
for  diverting  the  water  of  a  small  brook,  passing  through  land  of  the 
plaintiff  in  Shirley.  The  facts  arc  briefly  these:  Tlie  plaintiff  is  the 
owner  of  certain  land,  and  for  more  than  sixty  years  a  small  brook, 
having  its  sources  in  several  ponds,  has,  in  its  natural  course,  flowed 
tlirongli  lands  of  various  persons,  viz.,  of  one  Clark,  of  one  Furnin, 
and  then  through  the  plaintiff's  land,  which  is  about  half  a  mile  below 
said  Clark's,  and  from  the  plaintiff's  land,  through  various  other 
lands,  to  Nashua  River.  Said  brook  was  in  part  supplied  by  a  never- 
failing  spring,  on  said  Clark's  land,  near  said  brook,  and  having  its 
(ditU't  intf)  it.  The  defendants,  pursuant  to  a  warranty  deed  from 
said  Clark,  of  a  perpetual  right  and  privilege  to  make  and  maintain 
a  dam  and  reservoir,  and  draw  and  use  the  water  therefrom,  erected 


CHAP.    XVI.]  VIOLATION    OF    WATER   RIGHTS.  563 

such  dam  across  said  stream,  below  said  spring,  and  made  said  reser- 
voir upon  and  about  the  same,  and  inserted  a  lead  pipe  therein,  by 
means  of  which  they  have  used  and  constantly  taken  water,  from 
said  reservoir,  to  their  depot  in  Shirley,  and  used  the  same  for  fur- 
nishing their  locomotive  steam-engines  with  water,  and  for  other 
similar  purposes.  The  defendants  offered  evidence  tending  to  prove 
that  said  Clark,  where  said  brook  runs  through  his  meadow,  which 
is  wet.  and  springy,  had  cut  ditches  across  the  meadow  to  the  brook, 
thereby  increasing  the  flow  of  water  to  the  brook;  and  it  was  further 
proved  that  there  is  no  outlet  for  the  water  of  said  meadow,  except 
into  this  brook.    The  meadow  is  situate  below  the  dam. 

The  plaintiff  contended  that  if  the  jury  were  satisfied  of  the  ex- 
istence of  the  brook,  as  alleged,  and  the  diversion  of  the  water  there- 
from by  the  defendants,  he  was  entitled  to  a  verdict  for  nominal  dam- 
age, without  proof  of  actual  damage.  But  the  presiding  judge  in- 
structed the  jury  that  unless  the  plaintiff  suffered  actual  perceptible 
damage  in  consequence  of  the  diversion,  the  defendants  were  not  liable 
in  this  action.  In  connection  with  this  instruction,  the  judge  fur- 
ther instructed  the  jury  that  if  they  believed  that  the  defendants,  by 
excavating  said  reservoir  and  spring  above  the  dam,  or  that  said 
Clark,  by  digging  said  ditches,  had  increased  the  flow  of  water  in  said 
brook,  equal  to  the  quantity  of  water  the  defendants  had  diverted 
therefrom,  then  the  defendants  were  not  liable  in  this  action. 

The  whole  court  are  of  opinion  that  this  direction  was  right  in 
both  particulars. 

This  appears  to  have  been  a  small  stream  of  water;  but  it  must, 
we  think,  be  considered  that  the  same  rules  of  law  apply  to  it,  and 
regulate  the  rights  of  riparian  proprietors,  through  and  along  whose 
lands  it  passes,  as  are  held  to  apply  to  other  watercourses,  subject 
to  this  consideration,  that  what  would  be  a  reasonable  and  proper 
use  of  a  considerable  stream,  ordinarily  carrying  a  large  volume  of 
water,  for  irrigation  or  other  similar  uses,  would  be  an  unreasonable 
and  injurious  use  of  a  small  stream,  just  sufficient  to  furnish  water 
for  domestic  uses  for  farmyards,  and  watering-places  for  cattle. 

The  instruction  requested  by  the  plaintiff  is,  we  think,  founded  on 
a  misconception  of  the  rights  of  riparian  proprietors  in  watercourses 
passing  through  or  by  their  lands.  It  presupposes  that  the  diversion 
of  any  portion  of  the  water  of  a  running  stream,  without  regard 
to  the  fitness  of  the  purpose,  is  a  violation  of  the  right  of  every 
proprietor  of  land  lying  below,  on  the  same  stream,  so  that,  without 
suffering  any  actual  or  perceptible  damage,  he  may  have  an  action  for 
the  sole  purpose  of  vindicating  his  legal  right. 

The  right  to  flowing  water  is  now  well  settled  to  be  a  right  in- 
cident to  property  in  the  land;  it  is  a  right  publici  juris,  of  such 
character  that  whilst  it  is  common  and  equal  to  all,  through  whose 
land  it  runs,  and  no  one  can  obstruct  or  divert  it,  yet,  as  one  of  the 


564  ELLIOT    V.    FITCHBURG    R.    CO.  [CHAP,    XVI. 

beneficial  gifts  of  Providence,  each  proprietor  has  a  right  to  a  just 
and  reasonable  use  of  it  as  it  passes  through  his  land;  and  so  long 
as  it  is  not  wholly  obstructed  or  diverted,  or  no  larger  appropriation  of 
the  water  running  through  it  is  made  than  a  just  and  reasonable  use, 
it  cannot  be  said  to  be  wrongful  or  injurious  to  a  proprietor  lower 
down.  What  is  such  a  just  and  reasonable  use  may  often  be  a  difficult 
question,  depending  on  various  circumstances.  To  take  a  quantity  of 
water  from  a  large  running  stream  for  agriculture  or  manufacturing 
purposes  would  cause  no  sensible  or  practicable  diminution  of  the 
benefit  to  the  prejudice  of  a  lower  proprietor;  whereas,  taking  the 
same  quantity  from  a  small  running  brook  passing  through  many 
farms  would  be  of  great  and  manifest  injury  to  those  below,  who 
need  it  for  domestic  supply  or  watering  cattle ;  and  therefore  it  would 
be  an  unreasonable  use  of  the  water,  and  an  action  would  lie  in  the 
latter  case  and  not  in  the  former.  It  is  therefore,  to  a  considerable 
extent,  a  question  of  degree ;  still,  the  rule  is  the  same,  that  each  pro- 
prietor has  a  right  to  a  reasonable  use  of  it,  for  his  own  benefit,  for 
domestic  use,  and  for  manufacturing  and  agricultural  purposes. 

It  has  sometimes  been  made  a  question  whether  a  riparian  pro- 
prietor can  divert  water  from  a  running  stream  for  purposes  of  irri- 
gation. But  this,  we  think,  is  an  abstract  question  which  cannot  be 
answered  either  in  the  affirmative  or  negative,  as  a  rule  applicable  to 
all  cases.  That  a  portion  of  the  water  of  a  stream  may  be  used  for 
the  purpose  of  irrigating  land,  we  think  is  well  established  as  one 
of  the  rights  of  the  proprietors  of  the  soil  along  or  through  which 
it  passes.  Yet  a  proprietor  cannot  under  color  of  that  right,  or  for 
the  actual  purpose  of  irrigating  his  own  land,  wholly  abstract  or  di- 
vert the  watercourse,  or  take  such  an  unreasonable  quantity  of  water, 
or  make  such  unreasonable  use  of  it,  as  to  deprive  other  proprietors 
of  the  substantial  benefits  which  they  might  derive  from  it,  if  not 
diverted  or  used  unreasonably.  The  point  may,  perhaps,  be  best 
illustrated  by  extreme  cases.  One  man,  for  instance,  may  take  water 
from  a  perennial  stream  of  moderate  size,  by  means  of  buckets  or  a 
pump  —  for  the  mode  is  not  material  —  to  water  his  garden.  An- 
other may  turn  a  similar  current  over  a  level  tract  of  sandy  soil  of 
great  extent,  which,  in  its  ordinary  operation,  will  nearly  or  quite 
absorb  the  whole  volume  of  the  stream,  although  the  relative  position 
of  the  land  and  stream  are  such,  that  the  surplus  water,  when  there 
is  any,  is  returned  to  the  bed  of  the  stream.  The  one  might  be  re- 
garded as  a  reasonable  use,  doing  no  perceptible  damage  to  any 
lower  proprietor,  whilst  the  other  would  nearly  deprive  him  of  the 
whole  beneficial  use,  and  yet,  in  both,  the  water  would  be  used  for 
irrigation.  We  cite  a  few  of  the  leading  cases  in  Massachusetts  on 
tliis  subject.  Weston  v.  Aldcn,  8  "Mass.  13G ;  Coll)urn  v.  Hichards,  13 
Mass.  420;  Cook  v.  Hull,  3  Pick.  2G9;  Anthony  v.  Lapham,  5  Pick. 
175. 


CHAP.    XVI.]  VIOLATION    OF    WATER   EIGHTS.  565 

This  rule,  that  no  riparian  proprietor  can  wholly  abstract  or  di- 
vert a  watercourse,  by  which  it  would  cease  to  be  a  running  stream, 
or  use  it  unreasonably  in  its  passage,  and  thereby  deprive  a  lower 
proprietor  of  a  quality  of  his  property,  deemed  in  law  incidental  and 
beneficial,  necessarily  flows  from  the  principle  that  the  right  to  the 
reasonable  and  beneficial  use  of  a  running  stream  is  common  to  all 
the  riparian  proprietors,  and  so  each  is  bound  so  to  use  his  common 
right  as  not  essentially  to  prevent  or  interfere  with  an  equally  bene- 
ficial enjoyment  of  the  common  right  by  all  the  proprietors.  Were  it 
otherwise,  and  were  it  an  inflexible  rule  that  each  lower  proprietor 
has  a  right  to  the  full  and  entire  flow  of  the  natural  stream,  without 
diminution,  acceleration,  or  retardation  of  the  natural  current,  it 
would  follow  that  each  lower  proprietor  would  have  a  right  of  action 
against  any  upper  proprietor  for  taking  any  portion  of  the  water  of 
the  stream  for  any  purpose;  such  a  taking  would  be  a  disturbance  of 
his  right ;  and  if  taken  by  means  of  a  pump,  a  pipe,  a  drain,  or  other- 
wise, though  causing  no  substantial  damage,  it  would  be  a  nuisance, 
and  warrant  the  lower  proprietor  in  entering  the  close  of  the  upper 
to  abate  it.     Colburn  v.  Eichards,  13  Mass.  420. 

It  would  also  follow,  as  the  legal  and  practical  result,  that  no  pro- 
prietor could  have  any  beneficial  use  of  the  stream,  without  an  en- 
croachment of  another's  right,  subjecting  him  to  actions  toties  quoties, 
as  well  as  to  a  forcible  abatement  of  the  nuisance.  If  the  plaintiff 
could,  in  a  case  like  the  present,  have  such  an  action,  then  every  pro- 
prietor on  the  brook,  to  its  outlet  in  Nashua  Eiver,  would  have  the 
same;  and  because  the  quantity  of  diminution  is  not  material,  every 
riparian  proprietor  on  the  Nashua  would  have  the  same  right,  and  so 
every  proprietor  on  the  Merrimack  Eiver  to  the  ocean.  This  is  a 
sort  of  reductio  ad  absurdum,  which  shows  that  such  cannot  be  the 
rule,  as  was  claimed  by  the  plaintiff. 

Without  intending  at  present  to  state  the  authorities  fully,  we  refer 
to  the  following  English  cases,  as  tending  to  illustrate  and  fix  the  rule 
as  stated :  Bealey  v.  Shaw,  6  East,  208 ;  Buncombe  v.  Eandall,  Hetley, 
32;  Williams  v.  Morland,  2  B.  &  C.  910;  4  Dow.  &  Ey.  583;  Wright 
V.  Howard,  1  Sim.  &  Stu.  190. 

If  the  use  which  one  makes  of  his  right  in  the  stream  is  not  a 
reasonable  use,  or  if  it  causes  a  substantial  and  actual  damage  to 
the  proprietor  below,  by  diminishing  the  value  of  his  land,  though 
at  the  time  he  has  no  mill  or  other  work  to  sustain  present  damage, 
still,  if  the  party  thus  using  it  has  not  acquired  a  right  by  grant,  or 
by  actual  appropriation  and  enjoyment  twenty  years,  it  is  an  en- 
croachment on  the  right  of  the  lower  proprietor,  for  which  an  action 
will  lie.  Mason  v.  Hill,  3  B.  &  Ad.  304;  5  B.  &  Ad.  1;  Wood  v. 
Waud,  3  Welsby,  Hurlst.  &  Gord.  748.  But  the  doctrine  is  much  dis- 
cussed and  settled  on  deliberation,  in  a  recent  case  decided  in  the 
Court  of  Exchequer.  Embrey  v.  Owen,  6  Welsby,  Hurlst.  &  Gord. 
353. 


566  ELLIOT    V.    FlTClIBUltG    K.    CO.  [CHAP.    XVI. 

The  right  to  the  use  of  flowing  water  is  publici  juris,  and  com- 
mon to  all  the  riparian  proprietors;  it  is  not  an  absolute  and  ex- 
clusive right  to  all  the  water  flowing  past  their  land,  so  that  any 
obstruction  would  give  a  cause  of  action ;  but  it  is  a  right  to  the  flow 
and  enjoyment  of  the  w^ater,  subject  to  a  similar  right  in  all  the 
proprietors  to  the  reasonable  enjoyment  of  the  same  gift  of  Provi- 
dence. It  is  therefore  only  for  an  abstraction  and  deprivation  of 
this  common  benefit,  or  for  an  unreasonable  and  unauthorized  use 
of  it,  that  an  action  will  lie;  but  for  such  deprivation  or  unwarrant- 
able use  an  action  will  lie,  though  there  be  no  actual  present  damage. 
So  it  is  subsequently  stated  in  the  close  of  the  case  last  cited :  "  so  long 
as  this  reasonable  use  by  one  man  of  this  common  property  does  no 
actual  and  perceptible  damage  to  the  right  of  another  to  the  similar 
use  of  it,  no  action  will  lie." 

We  think  the  most  reliable  American  authorities  are  to  the  same 
effect.  3  Kent  Com.  (6th  ed.)  439;  Angell  on  Watercourses,  ch.  iv. ; 
Blanchard  v.  Baker,  8  Greenl.  253;  Tyler  v.  Wilkinson,  4  Mason,  397; 
Webb  V.  Portland  Manufacturing  Co.,  3  Sumner,  189 ;  Anthony  v. 
Lapham,  5  Pick.  175.  The  same  doctrine  has  been  held  in  a  recent 
case  in  New  York.    Van  Hoesen  v.  Coventry,  10  Barb.  518. 

In  applying  these  rules  to  the  present  case,  we  are  to  consider  that' 
Clark,  who  owned  the  land  on  which  the  dam  was  built,  and  the 
defendants  to  whom  he  conveyed  all  his  right  to  the  use  of  the  water, 
as  holding  together  the  whole  right;  and  it  is  to  be  considered  in  the 
same  manner  as  if  the  defendants  owned  the  land.  We  think  it  was 
properly  left  to  the  jury  to  find  whether  the  defendants,  claiming  in 
the  right  of  Clark  had,  by  their  diversion  of  the  water  for  a  valuable 
and  highly  beneficial  use,  caused  any  actual  or  perceptible  damage, 
and,  if  not,  to  find  for  the  defendants.  It  is  very  clear  that  here 
is  no  complaint  of  the  total  diversion  of  the  stream  from  the  plain- 
tiff's land;  no  such  ground  of  complaint  is  set  forth  or  relied  on. 
The  bed  of  the  stream  and  the  stream  itself  remains  and  passes 
through  the  plaintiff's  land  as  it  did  before.  The  gravamen  of  the 
complaint  is  not  for  diverting  the  stream  itself,  but  for  abstracting 
a  part  of  the  water  of  the  stream.  This  is  a  right  which  each 
proprietor  has,  if  exercised  within  a  reasonable  limit.  The  proper 
question  therefore  was,  whether,  in  the  mode  of  taking,  in  the  quan- 
tity taken,  and  the  purpose  for  which  it  w'as  taken,  there  was  a 
reasonable  and  justifiable  use  of  the  water  by  Clark.  The  use  being 
lawful  and  beneficial,  it  must  be  deemed  reasonable,  and  not  an  in- 
fringement of  the  right  of  the  plaintiff,  if  it  did  no  actual  and  per- 
ceptible damage  to  the  plaintiff;  and  thcrofore  wo  think  that  ques- 
tion of  fact  was  rightly  left  to  the  jury,  who  must  have  found  that 
it  did  him  no  such  damage. 

We  consider  the  other  direction  correct  also,  as  we  understand  it. 
The  question  was  not,  if  the  defendants  had  caused  a  damage  to  the 


CHAP.    XVI.]  VIOLATION    OF    WATER   RIGHTS.  567 

plaintiff,  amounting  in  law  to  a  disturbance  of  his  right,  for  which 
an  action  would  lie,  whether  it  would  be  barred  by  an  advantage  of 
equal  value,  conferred  in  nature  of  a  set-off;  but  whether,  the  im- 
provements of  Clark  upon  his  meadow  taken  together  as  a  whole  in- 
cluding the  dam  and  ditches  as  parts  of  one  and  the  same  improve- 
ment, any  damage  was  done  to  the  plaintiff;  and  this,  we  think,  was 
correctly  so  left. 

It  may  perhaps  be  proper  to  guard  against  misconstruction,  in 
considering  what  are  the  general  rights  and  duties  of  persons  owning 
lands  bounding  on  running  streams,  by  the  general  rules  of  law  and 
for  general  purposes,  that  some  alterations  of  these  rules  may  be  ef- 
fected in  Massachusetts,  by  the  acts  of  legislation  on  that  subject, 
in  respect  to  mills,  and  the  construction  which  has  been  judicially 
put  upon  such  legislative  acts.  This  system  originated  with  the  pro- 
vincial act,  13  Anne,  passed  in  1714,  Ancient  Laws  and  Charters  404. 
This  act  by  its  operation  necessarily  secures,  to  some  extent,  advan- 
tages to  the  prior  occupant  of  a  stream,  by  a  dam  erected  to  work 
a  mill.  Bigelow  v.  Newell,  10  Pick.  348;  Bemis  v.  Upham,  13  Pick. 
167;  Baird  v.  Wells,  23  Pick.  312. 

It  is  not  necessary,  however,  now  to  go  into  this  subject,  but  merely 
to  say  that  the  rights  to  streams  of  running  water,  upon  which  the 
present  question  turns,  are  not  dependent  upon  or  affected  by  the 
mill  acts. 

Exceptions  overruled. 


FKAZIEE  V.  BROWK 

Supreme  Court  of  Ohio,  December,  1861.    12  Ohio  St.  294. 

The  plaintiff,  now  plaintiff  in  error,  alleged  in  substance  that  he 
was  at  the  time  of  the  grievance  complained  of  owner  in  possession 
of  certain  land,  upon  which,  near  his  dwelling-house,  there  had  been 
from  time  immemorial  a  valuable  spring  of  water,  from  which  a 
never-failing  rivulet  or  stream  of  water  had  always  flowed  over  his 
land ;  and  that  the  defendant,  an  adjoining  landowner,  "  well  know- 
ing the  premises,  but  contriving  and  wickedly  intending  to  injure 
the  plaintiff,  and  to  destroy  said  spring  and  the  stream  of  water  is- 
suing therefrom,"  did  in  1856,  "by  means  of  a  certain  hole  wickedly 
and  maliciously  dug "  in  the  defendant's  land  adjoining,  "  for  the 
purpose  of  destroying  said  spring,  and  diverting  the  stream  or  rivulet 
.  .  .  from  running  across  .  .  .  the  aforesaid  premises  of  the  plain- 
tiff," destroy  said  spring  and  divert  the  water  issuing  therefrom  away 
from  the  plaintiff's  premises.    To  the  plaintiff's  damage,  &c. 

Demurrer  to  the  foregoing  sustained  by  the  Court  of  Common 
Plp.as,  and  judgment  rendered  for  the  defendant;  to  reverse  which 


568  FRAZIEK   V.    BROWN.  [CHAP.    XVI. 

the  plaintiff  filed  this  petition  in  error,  in  a  ease  reserved  for  the 
Supreme  Court. 

Brixkekhoff,  J.  On  approaching  the  questions  presented  by  the 
demurrer  to  the  petition  in  this  case,  and  attempting  to  examine 
them  in  the  light  of  the  decisions  which  appear  to  have  a  bearing 
upon  them,  those  decisions  seem,  at  first,  to  involve  no  little  contra- 
diction and  uncertainty.  But  this  seeming  uncertainty  and  contradic- 
tion in  the  cases  is  owing  to  the  want  of  a  classification  of  the 
general  subject  into  certain  distinct  branches  of  inquiry,  into  which 
the  general  subject  naturally  falls.  When  this  classification  is  made, 
the  seeming  contradictions  in  the  cases  almost  wholly  disappear;  and 
the  cases  drop  in  under  the  different  heads  of  inquiry  to  which  they 
properly  belong,  and  assume  a  real  and  very  satisfactory  consistency 
with  each  other. 

In  considering  the  relative  rights  and  obligations  of  owners  of  ad- 
joining lands  in  respect  to  water  passing  from  the  lands  of  one  to 
those  of  the  other,  the  subject  naturally  divides  itself  into  four 
branches  of  inquiry;  and  this  on  account  of  the  four  different  modes 
in  which  water  may,  and  sometimes  does,  pass  from  one  tract  of  land 
to  another. 

1.  In  respect  to  surface  streams  which  flow  in  a  permanent,  dis- 
tinct, and  well-defined  channel  from  the  lands  of  one  owner  to  those 
of  another. 

2.  In  respect  to  surface  waters  —  however  originating  —  which 
without  any  distinct  or  well-defined  channel,  by  attraction,  gravita- 
tion, or  otherwise,  are  shed  and  pass  from  the  lands  of  one  proprietor 
to  those  of  another. 

3.  Subterranean  streams  which  flow  in  a  permanent,  distinct,  and 
well-defined  channel  from  the  lands  of  one  to  those  of  another  pro- 
prietor. 

4.  Subsurface  waters,  which,  without  any  permanent,  distinct,  or 
definite  channel,  percolate  in  mere  veins,  ooze,  or  filter  from  the  lands 
of  one  owner  to  the  lands  of  another. 

The  whole  subject,  in  all  its  branches,  is  governed  by  two  general 
and  fundamental  maxims :  which  are  —  first,  that  the  estate,  usu- 
fruct, and  dominion  of  the  owner  of  lands  extend  from  the  sky  to 
the  lowest  depths  of  the  earth;  second,  that  every  man  shall  so  use 
his  own  as  not  to  injure  his  neighbor.  These  maxims,  however,  like 
most  general  rules,  are,  in  their  application,  subject  to  modifications 
or  exceptions,  growing  out  of  certain  great  principles  of  natural  riglit, 
anterior  in  their  origin,  and  superior  in  their  obligation,  to  all  indi- 
vidual proprietorship;  out  of  certain  paramount  considerations  of 
public  policy;  and  from  the  established  principle,  that,  however  great 
or  obvious  the  damage  may  be,  the  law  will  regard  as  an  injury  that 
only  which  contravenes  or  interferes  with  a  recognized  legal  right. 

Thus  1,  in  regard  to  the  branch  of  inquiry  first  above-named,  to 


CHAP.    XVI.]  VIOLATION    OF    WATER   EIGHTS.  569 

wit,  surface  streams  flowing  in  a  permanent,  distinct,  and  definite 
channel,  it  is  now  too  well  settled  to  require  the  citation  of  authorities 
for  its  support,  that  notwithstanding  the  maxim  which  affirms  the 
absolute  and  unlimited  dominion  of  the  proprietor  of  the  soil  upward 
and  downward,  the  proprietor  below  has,  in  the  absence  of  any  modi- 
fication of  relative  rights  by  contract  or  prescription,  no  right  to  throw 
the  water  back  on  him  above,  and  has  the  right  to  receive  it  from  the 
proprietor  above  substantially  undiminished  in  quantity  and  uncor- 
rupted  in  quality;  and  this  right  arises,  not  from  any  supposed 
grant  or  from  prescription,  but  ex  jure  naturae,  and  for  the  reason 
that  surface  streams  of  flowing  water  are  the  gift  of  Providence,  for 
the  benefit  of  all  lands  through  which  they  flow,  and  as  such  their 
usufruct  is  appurtenant  to  the  lands  through  which  they  flow. 

2.  In  respect  to  surface  waters  which,  without  any  permanent, 
distinct,  and  definite  channel,  are  shed,  or,  by  any  means  pass,  from 
the  lands  of  one  to  those  of  another  proprietor,  —  it  seems  now  to  be 
the  established  doctrine,  that,  unless  some  right  derived  from  actual 
contract  or  positive  legislation  intervene,  the  doctrine  which  asserts 
the  absolute  dominion  of  proprietors  applies  to  its  full  extent  and 
without  exception.  Paramount  considerations  of  public  policy  forbid 
the  acquisition  of  any  right  in  such  waters  by  an  adjoining  proprietor 
on  the  ground  of  prescription.  Otherwise  than  on  the  ground  of 
actual  contract  or  positive  legislation,  he  can  have  no  legal  right  in 
such  waters;  and  whatever  damage  he  may  suffer  by  reason  of  the 
exercise  of  his  neighbor's  rightful  command  over  his  own  soil,  is 
damnum  absque  injuria.  To  this  effect  the  cases  are  nearly  uniform, 
and  seem  to  rest  on  a  broad  and  sound  basis  of  reason  and  policy. 
Eauston  v.  Taylor,  11  Exch.  Eep.  369 ;  .Broadbent  v.  Ramsbotham, 
Id.  602 ;  Luther  v.  Winnisimmet  Company,  9  Cush.  171 ;  Wheatley 
i'.  Baugh,  25  Penn.  St.  Eep.  (1  Casey)  528.  The  only  case  that  I 
can  find  which  holds  a  contrary  doctrine,  is  Balston  v.  Bensted,  1 
Camp.  463.  But  that  was  a  case  at  nisi  prius,  doubtless  hastily  de- 
cided, and  which,  in  the  later  cases,  has  not  been  followed,  or  regarded 
as  authoritative. 

3.  In  respect  to  subsurface  streams,  which,  though  under  ground, 
yet  flow  in  a  permanent,  distinct,  and  well-defined  channel  unmixed 
with  the  earth  through  which  they  flow,  such  streams,  it  is  notorious, 
are  occasionally  found  to  exist  in  various  geological  formations; 
though  they  are  more  abundant,  both  in  frequency  and  volume,  in 
limestone  regions.  As  is  said  by  Lewis,  C.  J.,  in  Wheatley  v.  Baugh, 
above  cited,  "  In  limestone  regions  streams  of  great  volume  and 
power  pursue  their  subterranean  courses  for  great  distances,  and  then 
emerge  from  their  caverns,  furnishing  power  for  machinery  of  every 
description,  or  supplying  towns  and  settlements  with  water,  for  all 
the  purposes  of  life."  And  he  adds  that  "  when  the  filtrations  are 
gathered  into  sufficient  volume  to  have  an  appreciable  value,  and  to 


570  FRAZIER   V.    BROWN.  [CHAP.    XVI. 

flow  in  a  clearly-defined  channel,  it  is  generally  possible  to  see  it,  and 
to  avoid  diverting  it  without  serious  detriment  to  the  owner  of  the 
land  through  which  it  flows; "  and  he  expresses  the  opinion,  that  "  to 
say  that  these  streams  might  be  obstructed  or  diverted,  merely  because 
they  run  through  subterranean  channels,  is  to  forget  the  rights  and 
duties  of  man  in  relation  to  flowing  water."  He  is,  evidently,  of 
opinion  that  subterranean  streams,  as  distinguished  from  suljterra- 
nean  percolations  are  governed  by  the  same  rules,  and  give  rise  to  the 
same  rights  and  obligations  as  flowing  surface  streams.  But  the  case 
he  was  considering  did  not  necessarily  involve  any  question  in  refer- 
ence to  clearly-defined  subterranean  streams;  and  his  opinion,  there- 
fore, though  certainly  entitled  to  great  weight,  as  the  opinion  of  a 
jurist  who  evidently  has  very  thoroughly  considered  the  general  sub- 
ject, and  has  discussed  it  with  great  and  comprehensive  ability,  can 
hardly  be  regarded  as  authoritative. 

To  this  branch  of  inquiry,  too,  the  case  of  Smith  v.  Adams,  6 
Paige,  435,  is  clearly  referable.  That  was  a  bill  in  Chancery,  by  an 
owner  below,  to  restrain,  by  injunction,  an  owner  above  from  divert- 
ing a  portion  of  the  water  of  a  subterranean  stream  which,  on  the 
complainant's  land,  and  a  few  feet  from  the  line  between  the  parties, 
issued  from  a  channel  in  a  ledge  of  slate  rock,  and  there  formed  a 
spring;  and  which  subterranean  stream  the  defendant,  on  his  own 
land,  though  but  a  few  feet  above  where  it  issued  on  the  complain- 
ants' land,  had  tapped,  and,  by  means  of  an  aqueduct  of  logs,  had 
diverted  a  portion  of  its  waters  to  his  own  purposes,  and  out  of  their 
natural  channel.  The  Chancellor  expressed  the  opinion  that  the 
partial  diversion  of  the  water  of  the  underground  stream  was  wrong- 
ful; but  inasmuch  as  the  small  quantity  of  water  diverted,  and  the 
trifling  amount  of  damage  done,  brought  the  case  within  the  rule  of 
de  minimis,  he  dismissed  the  bill,  and  left  the  complainant  to  his 
remedy  at  law. 

Parke,  B.,  in  Dickinson  v.  The  Grand  Junction  Canal  Company, 
9  E.  L.  &  E.  Rep.  531,  also  speaking  of  surface  streams,  says,  "  When 
water  is  on  the  surface,  the  right  of  the  owner  of  adjoining  land  to 
the  usufruct  of  that  water  is  not  a  doubtful  matter  of  fact  —  it  is 
public  and  notorious  —  and  such  a  right  ought,  as  a  matter  of  eourso, 
to  be  respected  by  every  one;  and,  indeed,  if  the  course  of  a  subter- 
ranean stream  were  well  known  —  as  is  the  case  with  many,  which 
sink  underground,  pursue  for  a  short  space  a  subterranean  course, 
and  then  emerge  again  —  it  never  could  be  contended  that  the  owner 
of  the  soil,  under  which  the  stream  flowed,  could  not  maintain  an 
action  for  the  diversion  of  it,  if  it  took  place  under  such  circum- 
stances as  would  have  enabled  him  to  recover  if  the  stream  had  been 
wholly  above  ground."  And  it  will  be  observed  that  both  Baron  Parke 
and  Chief  Justice  Lewis  intimate  the  opinion,  that,  in  order  to  bring 
subterranean  streams  within  the  rules  which  govern  surface  streams. 


CHAP.    XVI.]  VIOLATION    OF    WATER   RIGHTS.  571 

their  existence  and  their  course  must  be,  to  some  extent,  known  or 
notorious.  And  it  seems  to  me  that,  if  the  question  should  ever  arise, 
the  rights  and  obligations  of  adjoining  proprietors  would  have  to  be 
subjected  to  tbis  limitation;  and  this  for  the  reason  —  which  will  be 
more  fully  noticed  hereafter  —  that  the  law  cannot  properly  limit 
the  ordinarily  absolute  dominion  of  the  owner  of  the  soil,  in  respect 
to  things  concealed  and  hidden  in  the  bowels  of  the  earth,  nor  recog- 
nize an  adjoining  proprietor  as  having  claims  upon,  or  rights  in,  a 
thing  passing  under  the  surface  of  his  neighbor's  land,  the  existence 
of  which  was  iirst  revealed  by  the  very  act  which  would  constitute 
the  subject-matter  of  his  complaint. 

But  all  the  opinions  to  which  I  have  adverted  under  this  head  of 
the  general  subject,  are  obiter  dicta;  the  questions  considered  did  not 
necessarily  arise  in  any  of  the  cases  in  which  the  opinions  were  ex- 
pressed, —  not  even  in  the  case  of  Smith  v.  Adams ;  they  were  there, 
as  they  are  here,  rather  matters  of  curious  speculation  than  otherwise ; 
though  the  subjects  to  which  they  relate  must  necessarily  be  noticed, 
in  order  to  a  proper  classification  of  the  general  subject,  and  a  more 
ready  apprehension  of  the  distinctions  which  it  involves.  But  the 
questions  remain  undecided;  and  we  leave  them  where  we  find  them, 
—  open  to  future  consideration  and  adjudication,  under  the  further 
lights  which  the  future  may  develop. 

4.  We  come  now  to  the  last  branch  of  inquiry,  named  in  our  classi- 
fication ;  to  wit,  as  to  the  rights,  if  any,  which  a  landowner  has,  —  in 
the  absence  of  anything  arising  from  either  express  contract  or  posi- 
tive legislation  in  respect  to  subsurface  waters,  which  without  any 
distinct,  definite,  and  known  channel,  ooze,  filter,  or  percolate  in  small 
veins  from  the  lands  of  his  neighbor  into  his  own. 

It  is  under  this  head  that  the  questions  made  by  the  demurrer  to 
the  petition  in  this  case  clearly  fall.  For  it  is  nowhere  alleged  in  the 
petition  that  the  waters,  the  abstraction  and  detention  of  which  is 
complained  of,  reach  the  lands  of  the  plaintiff  in  any  distinct,  definite, 
or  known  channel,  either  above  or  below  the  surface;  but  on  the 
contrary  the  petition  describes  them  as  a  spring  which  "  issued  and 
oozed "  out  of  the  land  of  the  plaintiff,  and  from  which  spring  a 
rivulet  ran  and  meandered  over  and  through  the  plaintiff's  lands. 
Distinct  and  well-defined  subterranean  streams  of  water  are  com- 
paratively rare;  their  existence,  in  any  case,  cannot  properly  be  pre- 
sumed; and  the  most  liberal  construction  which  can  be  given  to  the 
language  of  this  petition  will  not  justify  us  in  considering  it  is  as 
alleged,  that  any  such  stream  passes  from  the  lands  of  the  defendant 
to  those  of  the  plaintiff ;  and  there  is  no  claim  that  the  natural  rights 
of  the  parties,  growing  out  of  their  relations  of  proximity  to  each 
other,  have  in  any  way  been  modified  by  either  contract  or  legislation. 
The  plaintiff  is  bound  to  state  facts  which  —  the  statements  being 
liberally  construed  —  constitute  a  cause  of  action ;  and  if  everything 


572  FRAZIER   V.    BROWN.  [CHAP.    XVI. 

•which  he  avers  in  his  petition  may  be  true,  and  yet  no  cause  of  action 
exist,  then  the  demurrer  to  the  petition  was  rightfully  sustained. 

What  was  the  object  for  which  the  "  hole "  of  which  the  plaintiff 
complains,  was  designed,  we  are  not  fully  informed.  It  may  have 
been  a  well  for  domestic  use,  or  for  watering  stock;  or  a  surface 
reservoir  for  watering  stock,  —  not  uncommon  in  some  parts  of  this 
State;  it  may  have  been  a  cellar,  stone  quarry,  mine,  or  coalpit;  a 
salt  well,  or  an  oil  well ;  or  it  may  have  been  a  fish-pond,  or  a  miniature 
water  view,  for  purposes  of  ornament,  made  in  an  effort  in  land- 
scape gardening.  For  aught  that  appears  in  the  petition,  it  may  have 
been  any  of  these,  and  embracing  in  its  object  also  the  malicious  de- 
sign to  injure  the  plaintiff,  as  averred  in  the  petition. 

And  it  certainly  is  possible,  that  it  may  have  been  dug  by  the 
defendant  from  motives  of  unmixed  malice,  without  any  object,  and, 
when  done,  incapa1)le  of  answering  any  end,  either  of  ornament,  con- 
venience, or  profit,  connected  with  the  enjoyment  and  use  of  his 
property.  And  such  a  case,  should  it  ever  arise,  is  reserved  for  future 
consideration. 

The  question  then  is,  whether  —  in  the  absence  of  all  rights  de- 
rived either  from  contract  or  legislation  —  a  landowner  can  have 
any  legal  claims  in  respect  to  subsurface  waters  which,  without  any 
distinct,  and  definite  channel,  ooze,  filter,  and  percolate  from  ad- 
joining lands  into  his  own,  when  such  waters  are  diverted,  retained, 
or  abstracted  by  the  owner  of  such  adjoining  lands  in  the  use  of 
his  property,  for  any  object  of  either  taste  or  profit,  even  though  the 
use  may  be  accompanied  by  a  malicious  intent  to  injure  his  neighbor 
by  means  of  such  use.  Whatever  points  of  casuistry  may  arise  out 
of  this  question,  cognizable  in  the  court  of  individual  conscience 
under  the  perfect  law  of  Christian  morals,  we  are  of  opinion  that  the 
law  of  the  land  can  recognize  no  such  claims;  and  that,  subject  only 
to  the  possible  exception  of  a  case  of  unmixed  malice,  the  maxim 
"  cujus  est  solum  ejus  est  usque  ad  coelum,  et  ad  infernos  "  applies 
to  its  full  extent;  and  whatever  damage  may  result  from  the  exercise 
of  this  absolute  right  of  property,  to  adjoining  proprietors  from  the 
loss  of  such  percolating  subsurface  waters,  is  damnum  absque  injuria. 
With  the  exception  of  the  nisi  prius  decision  of  Lord  Ellcnborough, 
in  Balston  v.  Benstcd,  before  referred  to,  and  an  obiter  opinion  of 
Parke,  B.,  in  Dickinson  v.  The  Grand  Junction  Canal  Co.,  supra,  the 
current  of  decisions,  to  this  effect,  both  in  England  and  the  United 
States,  is  uniform  and  consistent.  I  say,  the  opinion  of  Parke,  B., 
in  Dickinson  v.  The  Grand  Junction  Canal  Co.,  was  obiter;  for,  on  an 
inspection  of  that  case  it  will  be  seen,  that  the  plaintiff''s  rights,  as 
there  claimed  by  him,  were  rested  on  a  basis  of  express  contract;  and 
there  was  no  occasion  to  pass  upon  any  principle  of  natural  right 
growing  out  of  the  other  relations  of  the  parties. 

The  reasoning  on   which  this  current  of  decision  proceeds  is  en- 


CHAP.    XVI.]  VIOLATION    OF    WATER   EIGHTS.  573 

tirely  satisfactory  to  us,  and  will  be  developed  as  we  proceed  with 
a  brief  review  of  the  more  prominent  cases. 

The  first  case  arising  in  this  country,  and  bearing  directly  on 
the  question  before  us,  of  which  we  are  aware,  is  Greenleaf  v.  Francis, 
18  Pick.  117.  It  was  an  action  on  the  case.  The  plaintiff  had  dug 
a  well  in  her  cellar,  two  or  three  feet  from  the  line  between  her  land 
and  that  of  the  defendant,  in  which  the  water  rose  to  the  surface  of 
the  well.  Within  less  than  twenty  years  thereafter,  the  defendant, 
after  ascertaining  the  exact  situation  of  the  plaintiff's  well,  dug  a 
well  for  his  own  use,  on  his  own  land,  about  the  same  distance  from 
the  line,  and  as  near  to  it  as  the  party  walls  between  the  cellars  would 
admit ;  in  consequence  of  which  —  it  would  seem  —  the  defendant  ob- 
tained a  good  well;  but  the  plaintiff's  well  became  dry.  On  the  trial 
of  the  case  "  the  plaintiff  requested  the  judge  to  instruct  the  jury, 
that  if  they  were  satisfied  that  the  defendant  so  placed  his  well,  with 
the  design  and  intent  thereby  to  draw  off  the  water  from  the  plaintiff's 
well  into  his  own,  they  should  return  a  verdict  for  the  plaintiff.  But 
the  judge  instructed  the  jury,  that  the  defendant  had  a  legal  right 
to  dig  a  well  upon  any  part  of  his  own  land  for  the  purpose  of  ob- 
taining water  for  his  own  use;  that  if  he  dug  the  well  where  he  did, 
for  this  purpose,  he  was  justified  in  so  doing,  although  the  effect 
might  be  to  diminish  the  water  in  the  plaintiff's  well;  that  if  he 
dug  the  well  where  he  did,  for  the  purpose  of  injuring  the  plaintiff, 
and  not  for  the  purpose  of  obtaining  water  for  his  own  use,  he  was 
liable  in  this  action;  but  that  if  he  dug  his  well,  for  the  purpose  of 
accommodating  himself  with  water,  he  was  not  liable  for  so  doing, 
even  if  he,  at  the  same  time,  entertained  hostility  toward  the  plaintiff 
and  a  desire  to  injure  her,  and  these  feelings  were  thereby  gratified.'* 
The  jury,  under  these  instructions,  having  returned  a  verdict  for 
the  defendant,  and  a  motion  for  a  new  trial  having  been  reserved 
for  decision  by  the  whole  court,  it  was  held  that  there  was  no  error 
in  the  instructions  given  to  the  jury,  and  a  judgment  was  rendered 
upon  the  verdict.  And  Putnam,  J.,  in  delivering  the  opinion  of  the 
court,  among  other  things,  says,  —  "  There  is  not  evidence  of  any 
adverse  use  or  possession  at  all.  For  the  defendant  had  no  means  of 
knowing  that  the  plaintiff's  well  was  supplied  by  springs  in  the  de- 
fendant's soil,  until  the  defendant  dug  for  water  there  for  his  own 
use.  .  .  .  Indeed  there  is  nothing  in  the  case  at  bar,  which  limits 
or  restrains  the  owners  of  these  estates,  severally,  from  having  the 
absolute  dominion  of  the  soil,  extending  upward  and  below  the  sur- 
face so  far  as  each  pleases."  And,  by  way  of  support  to  the  opinion 
expressed,  that  "  there  is  not  evidence  of  any  adverse  use  or  posses- 
sion at  all,"  he  adds  —  "he"  (the  defendant)  "sustained  no  injury 
by  the  use  which  the  plaintiff  made  of  the  water  which  she  found 
in  her  own  well ;  "  thus  suggesting  the  idea  —  more  fully  noticed 
hereafter  —  that  the  doctrine  of  prescription,  or  presumption  of  grant 


574  FRAZIER   V.    BROWN.  [CHAP,    XVI. 

from  lapse  of  time,  can  have  no  proper  application  to  a  case  where 
the  party  against  whom  it  is  sought  to  apply  it,  must,  from  the  nature 
of  the  case  be  unconscious  of,  or  at  least  uncertain  in  regard  to,  any 
injury  or  infringement  of  his  rights.  The  next  case,  in  the  order 
of  time,  is  Roath  v.  Driscoll,  20  Conn.  533.  This  was  a  bill  in 
chancery,  complaining  of  an  injury  to  the  plaintiff,  by  means  of  a 
diversion  of  water  by  the  defendant,  and  asking  for  an  injunction. 
And  the  question  made  and  considered  was  —  "  Can  one  of  two  ad- 
joining proprietors,  by  first  opening  a  watering  place,  prevent  other 
persons  from  doing  the  same,  on  their  own  land;  though  by  so  doing, 
water  is  prevented  from  percolating  the  land  so  as  to  supply  the 
first-made  reservoir."  The  question  was  answered  in  the  negative. 
And  Ellsworth,  J.,  discussing  the  case,  and  delivering  the  opinion  of 
the  court,  says  — "  Nothing  is  gained  by  a  mere  continued  preoc- 
cupancy  of  water  under  the  surface.  Why  should  any  advantage  be 
gained  by  preoccupancy  ?  Each  owner  has  an  equal  and  complete 
right  to  the  use  of  his  land,  and  to  the  water  which  is  in  it.  Water, 
combined  with  the  earth,  or  passing  through  it,  by  percolation,  or  by 
filtration,  or  chemical  attraction,  has  no  distinctive  character  of 
o^Tiership  from  the  earth  itself;  not  more  than  the  metallic  oxides 
of  which  the  earth  is  composed.  Water,  whether  moving  or  motion- 
less in  the  earth,  is  not,  in  the  eye  of  the  law,  distinct  from  the 
earth.  The  laws  of  its  existence  and  progress,  while  there,  are  not 
uniform,  and  cannot  be  knovrn  or  regulated.  It  rises  to  great  heights, 
and  moves  collaterally,  by  influences  beyond  our  apprehension.  These 
influences  are  so  secret,  changeable,  and  uncontrollable,  we  cannot 
subject  them  to  the  regulations  of  land,  nor  build  upon  them  a  system 
of  rules,  as  has  been  done  with  streams  upon  the  surface." 

Further,  we  may  say,  that  by  general  consent  of  mankind,  which 
is  to  be  inferred  from  the  nature  of  the  right  itself,  each  person 
must  be  left  to  enjoy  any  natural  advantage  belonging  to  his  own 
land;  and  water,  appearing  and  standing,  either  naturally  or  by  arti- 
ficial means,  but  never  constituting  a  running  stream,  is  such  a 
natural  advantage;  were  it  otherwise,  one  man  by  sinking  a  well, 
though  comparatively  unimportant,  might  prevent  the  sinking  of 
other  wells,  and  the  improvement  of  the  neighborhood,  by  draining 
marshes,  &c.,  and  even  the  opening  of  mines  of  metal  or  coal;  as  the 
water  might  not  percolate,  with  the  same  freeness,  or  abundance  as 
before.  Beside,  no  man  is  bound  to  know  that  his  neighbor's  well  is 
supplied  by  water  percolating  his  own  soil;  and  he  ought  not,  there- 
fore, to  be  held  to  lose  his  rights,  by  such  continual  enjoyment.  He 
cannot  know  that  the  first  well  requires  any  other  than  the  natural 
and  common  use  of  water  under  the  surface;  nor  can  he  know  from 
whence  the  water  comes;  nor  by  what  means  it  appears  in  one  place 
or  thf  other;  nor  which  of  the  persons  who  first  or  afterward  opens 
the  earth,  encroaches  upon  the  right  of  tlic  other.     The  law  has  not 


CHAP,    XVI.]  VIOLATION    OF    WATER   RIGHTS.  575 

yet  extended  beyond  open  running  streams.  Nor  can  any  light  be 
obtained  from  the  law  of  surface  streams.  Such  streams  are  recog- 
nized as  private  property,  and  their  use  is  regulated  by  principles  of 
obvious  equity  and  necessity.  Their  nature  is  defined;  their  progress 
over  the  surface  seen  and  known,  and  uniform.  They  are  not  in 
the  secret  places  of  the  earth,  and  a  part  of  it;  nor  is  there  any 
secrecy  in  the  influences. which  move  them.  As  soon  as  they  appear 
and  pass  over  the  surface,  they  assume  a  distinct  character,  and  are 
subject  to  the  great  law  of  gravitation.  The  purchaser  of  land  knows 
what  he  purchases,  and  what  control  he  can  exercise  over  such  a 
stream,  and  what  are  the  rights  of  those  above  or  below  him. 

Next  comes  the  case  of  Chatfield  v.  Wilson,  28  Verm.  49.  This  is 
a  well-considered  and  strongly-reasoned  case  both  on  principle  and  au- 
thority ;  and  it  is  there  held,  that  "  there  are  no  correlative  rights 
existing  between  the  proprietors  of  adjoining  lands,  in  reference  to 
the  use  of  the  water  in  the  earth  or  percolating  under  its  surface. 
Such  water  is  to  be  regarded  as  part  of  the  land  itself,  to  be  enjoyed 
absolutely  by  the  proprietor  within  whose  territory  it  is ;  and  to  it  the 
law  governing  the  use  of  running  streams  is  inapplicable."  And  that 
"  An  act  legal  in  itself,  and  which  violates  no  right,  cannot  be  made 
actionable  on  account  of  the  motive  which  induces  it."  The  case 
seems  to  go  to  the  full  extent  of  holding  that  the  act  of  detaining  or 
diverting  subsurface  percolating  waters  from  an  adjoining  proprietor, 
gives  him  no  right  of  action,  though  the  act  be  one,  under  the  cir- 
cumstances of  unmixed  malice. 

The  cases  which  I  have  thus  far  noticed  are  all  cases  in  which  the 
injury  complained  of  related  to  wells  or  reservoirs  artificially  pro- 
vided. But  the  next  case  —  Ellis  v.  Duncan,  21  Barbour's  S.  C.  E. 
230  —  relates  to  a  spring  and  running  stream.  It  is  there  held  that 
"  the  owner  of  a  farm  may  dig  a  ditch  to  drain  his  land,  or  open 
and  work  a  quarry  upon  it,  although  by  so  doing  he  intercepts  one 
of  the  underground  sources  of  a  spring  on  his  neighbor's  land,  which 
supplies  a  small  stream  of  water  flowing  partly  through  the  land  of 
each,  and  thereby  diminishes  the  natural  supply  of  water,  to  the  in- 
jury of  the  adjoining  proprietor."  And  that  "  the  rule  that  a  man 
has  a  right  to  the  free  and  absolute  use  of  his  property,  so  long  as  he 
does  not  directly  invade  that  of  his  neighbor,  or  consequentially  in- 
jure his  perceptible  and  clearly-defined  rights,  is  applicable  to  the 
interruption  of  the  subsurface  supplies  of  a  stream,  by  the  owner  of 
the  soil;  and  the  damage  resulting  from  such  an  interruption,  is  not 
the  subject  of  legal  redress."  And  Strong,  J.,  delivering  the  opinion 
of  the  court  in  the  case,  says  —  "  there  can  be  no  doubt  of  the  correct- 
ness of  the  injunction,  sic  utere  tuo  ut  alienum  non  laedas ;  but  I  have 
frequently  had  occasion  to  remark  that  it  refers  to  such  injuries  only 
as  the  law  will  redress,  and  not  to  the  large  class  which  are  denom- 
inated damnum  absque  injuria." 


576  FRAZIER   V.    BROWN.  [CHAP.   XVI. 

The  next  case  has  been  already  incidentally  referred  to  —  that  of 
Wheatley  v.  Baugh,  25  Penn.  St.  Rep.  528  —  in  which  Chief  Justice 
Lewis  discusses  the  whole  subject  with  a  clearness  and  comprehensive 
ability  certainly  not  exceeded  by  anything  else  which  we  have  been 
able  to  find  in  the  books.  It  is  held  in  that  case,  that  "  Where  a 
spring  depends  for  its  supply  upon  percolations  through  the  land  of 
the  owner  above,  and,  in  the  use  of  the  land  for  mining,  or  other  law- 
ful purposes,  the  spring  is  destroyed,  such  owner  is  not  liable  for 
the  damages  thus  done,  unless  the  injury  was  occasioned  by  malice  or 
negligence.  'Not  would  the  enjoyment  of  the  spring  for  twenty-one 
years  raise  any  presumption  of  a  grant;  for  no  presumption  would 
arise  against  the  owner  until  it  was  shown  that  the  exercise  of  the 
privilege  interfered  with  his  rights  in  such  manner  as  to  entitle  him 
to  legal  redress." 

In  discussing  the  principles  involved  in  the  case,  the  learned  Chief 
Justice  says :  "  Percolations  spread  in  every  direction  through  the 
earth;  and  it  is  impossible  to  avoid  disturbing  them  without  re- 
linquishing the  necessary  enjoyment  of  the  land.  Accordingly,  the 
law  has  never  gone  so  far  as  to  recognize  in  one  man  a  right  to 
convert  another's  farm  to  his  own  use  for  the  purpose  of  a  filter. 
Such  a  claim,  if  sustained,  would  amount  to  a  total  abrogation  of 
the  right  of  property.  No  man  could  dig  a  cellar,  or  a  well,  or  build 
a  house  on  his  own  land,  because  these  operations  necessarily  interrupt 
the  filtrations  through  the  earth.  ISTor  could  he  cut  down  the  forest 
and  clear  his  land  for  the  purpose  of  husbandry,  because  the  evapora- 
tion which  would  be  caused  by  exposing  the  soil  to  the  sun  and  air 
would  inevitably  diminish,  to  some  extent,  the  supply  of  water  which 
would  otherwise  filter  through  it.  He  could  not  even  turn  a  furrow 
for  agricultural  purposes,  because  this  would,  partially,  produce  the 
same  result.  Even  if  this  right  were  admitted  to  exist,  the  difficulty 
of  ascertaining  the  fact  of  its  violation,  as  well  as  the  extent  of  it, 
would  be  insurmountable." 

Turning  now  to  the  English  cases  not  already  noticed,  we  come 
first  to  Acton  v.  Blundcll,  12  M.  &  W.  324.  This  case  was  thoroughly 
argued  and  considered ;  and  it  was  tliere  held,  that  "  the  owner  of  land 
through  which  water  flows  in  a  subterranean  course  has  no  right  or 
:nterest  in  it  which  will  enable  him  to  maintain  an  action  against  a 
landowner,  who,  in  carrying  on  mining  operations  in  his  own  land 
in  the  usual  manner,  drains  away  the  water  from  the  land  of  the  first 
mentioned  owner,  and  lays  his  well  dry."  And  the  quaere  is  added, 
"  if  the  well  had  been  ancient,  whether  there  would  have  been  any 
din"(»rence?  " 

The  next,  and,  I  believe,  the  only  remaining  case  to  be  found  in  the 
English  books,  is  Chasemore  v.  Richards,  decided  in  the  Exchequer 
Chamber,  on  error  to  the  Court  of  Exchequer  in  1857.  2  Hurlstone 
&  Norman's  Ex.  R.  1G8.     Except  that  there  was  no  ingredient  of 


CHAP.    XVI.]  VIOLATION    OF    WATER   RIGHTS.  577 

malice  found  to  exist  in  the  acts  of  the  defendant  in  that  case,  it  was 
entirely  analogous  to  the  case  before  us,  and  involved  the  same  ques- 
tions. It  was  there  held,  that  "  the  owner  of  a  mill  on  the  banks 
of  a  river,  cannot  maintain  an  action  against  a  landowner  who " 
without  malice,  but  having  "  reasonable  means  of  knowing  tlic  prob- 
able and  natural  effects  "  of  his  acts,  "  sinks  a  deep  well  on  his  own 
land,  and,  by  pumps  and  steam-engines,  diverts  the  underground 
water  which  would  otherwise  have  percolated  the  soil,  and  flowed  into 
the  river  by  which  for  more  than  sixty  years,  the  mill  was  worked." 
The  case  was  strongly  argued  before  seven  judges  of  the  Exchequer 
Chamber,  and  Coleridge,  J.,  alone  dissented.  Unfortunately,  a  copy 
of  the  latest  volume  of  House  of  Lords'  Cases  has  not  yet  reached  our 
library;  but  from  a  copy  of  the  Weekly  Law  Gazette,  with  which 
counsel  have  furnished  us,  we  learn  that  this  case  was  carried  to 
the  House  of  Lords  on  error,  and  there  unanimously  aflfirmed.^  Lord 
Wensleydale  (late  Parke,  B.),  whose  dictum  in  Dickinson  v.  The 
Grand  Junction  Canal  Company,  before  noticed,  was  thereby  over- 
ruled, concurring  in  the  affirmance,  though  somewhat  doubtingly  and 
reluctantly.  From  this  running  abstract  of  the  cases  bearing  im- 
mediately upon  the  question  before  us,  it  will  be  seen,  that  though 
the  question  is  one  of  no  little  novelty,  niceness,  and  difficulty,  yet 
the  current  of  decision  is  singularly  uniform  and  consistent.  It  is 
evident  that  if  the  overwhelming  current  of  authority  is  to  be  re- 
garded, the  judgment  of  the  Court  of  Common  Pleas  must  be  affirmed. 
But,  as  I  have  already  said,  the  reasoning  on  which  this  course  of 
decision  proceeds,  is,  to  our  minds,  as  satisfactory  as  the  cases  them- 
selves are  uniform  and  consistent. 

The  reasoning  is  briefly  this :  In  the  absence  of  express  contract, 
and  of  positive  authorized  legislation,  as  between  proprietors  of  ad- 
joining lands,  the  law  recognizes  no  correlative  rights  in  respect  to 
underground  waters  percolating,  oozing,  or  filtrating  through  the 
earth;  and  this  mainly  from  considerations  of  public  policy.  1.  Be- 
cause the  existence,  origin,  movement,  and  course  of  such  waters,  and 
the  causes  which  govern  and  direct  their  movements,  are  so  secret, 
occult,  and  concealed,  that  an  attempt  to  administer  any  set  of  legal 
rules  in  respect  to  them  would  be  involved  in  hopeless  uncertainty, 
and  would  be,  therefore,  practically  impossible.  2.  Because  any 
such  recognition  of  correlative  rights  would  interfere,  to  the  material 
detriment  of  the  commonwealth,  with  drainage  and  agriculture,  min- 
ing, the  construction  of  highways  and  railroads,  with  sanitary  regula- 
tions, building,  and  the  general  progress  of  improvement  in  works  of 
embellishment  and  utility. 

That  the  doctrine  of  prescription,  or  presumption  of  grant  from 
lapse  of  time,  can  have  no  proper  application  to  the  question:  1. 
Because  the  party  against  whom  the  doctrine  would  have  to  be  ap* 

1  7  H.  L.  Cas.  349. 


578  SWETT    V.    CUTTS.  [CIIAP.    XVI. 

plied,  could  not  be  reasonably  required  to  enter  his  caveat  against 
the  appropriation  of  a  thing  so  hidden  and  obscure  as  is  percolating 
underground  water;  and  2.  Because  the  appropriation  of  such  waters 
by  an  adjoining  proprietor,  is  no  infringement  of  his  rights,  so  as 
to  become  the  subject  of  legal  redress,  until  such  time  as  he  him- 
self has  occasion  to  appropriate  them. 

And,  as  an  act  unlawful  in  itself,  resulting  in  injury  to  another, 
whatever  may  have  been  the  motive  with  which  it  was  done,  is  none 
the  less  the  subject  of  legal  redress;  so  the  act  done,  to  wit,  the  using 
of  one's  own  property,  being  lawful  in  itself,  the  motive  with  which 
it  is  done  —  whatever  it  may  be  as  a  matter  of  conscience  —  is,  in 
law,  a  matter  of  indijEference.  It  is  hardly  necessary  to  add,  that  this 
case  does  not  include,  and,  in  deciding  it,  we  by  no  means  intend  to 
preclude,  questions  which  may  arise  in  a  class  of  cases  in  which  a 
landowner  by  positive  acts  poisons  or  corrupts  the  waters  which 
percolate  from  his  lands  to  those  of  his  neighbor.  Such  cases  are 
clearly  distinguishable  from  this,  and  to  them  the  considerations  of 
public  policy  which  govern  this  case  do  not  necessarily  apply.  Wood 
V.  Waud,  3  Exch.  E.  748. 

The  judgment  of  the  Court  of  Common  Pleas,  sustaining  the  de- 
murrer to  the  petition,  will  be 

Affirmed. 

Note  :  To  the  same  effect  on  the  question  of  the  motive  of  the 
defendant,  see  Bradford  v.  Pickles,  1895,  1  Ch.  145,  in  the  Court  of 
Appeal.  At.  p.  166,  A.  L.  Smith,  L.  J.,  says:  "In  my  judgment,  by 
the  common  law  of  England  a  man  may  deal  with  his  own  in  any  way 
he  pleases,  irrespective  of  what  his  motive  may  be,  so  long  as  he  trans- 
gresses no  statute,  no  contract,  or  the  maxim  '  sic  utere  tuo,'  etc." 


SWETT  V.  CUTTS. 

Supreme  Court  of  New  Hampshire,  December,  1870.     50  N.  H.  439. 

Action  for  damages  for  causing  surface  water  collected  and  run- 
ning in  a  ditch  adjoining  a  highway  to  be  thrown  back  upon  tlie 
plaintiff's  land.  The  declaration  in  the  first  count  alleged :  "  There  is, 
and  from  time  immemorial  has  been  .  .  .  contiguous  to  the  land  of 
the  said  defendant  .  .  .  and  of  the  said  plaintiff  a  certain  ditch  or 
water-course,  in  which  in  seasons  of  rain  and  molting  snow  the  water 
has  been  wont  to  gather  and  accumulate,"  which  water,  by  means 
of  a  depression  in  tl)e  defendant's  land,  "has  f flowed]  from  time  im- 
moinorial,  until  the  wrongful  acts  of  the  said  defendant  hereinafter 
mentioned,  and  but  for  said  wrongful  acts  would  still  .  .  .  flow  .  .  . 
over  and  across  the  said  land  of  the  said  defendant.     Yet  the  said 


CHAP.    XVI.]  VIOLATION    OF    WATER   RIGHTS.  579 

defendant,  intending  to  wrong  and  injure  the  said  plaintiff  .  .  .  did 
.  .  .  build,  erect,  and  place  a  high  embankment  or  barrier  across  said 
depression  ...  by  reason  whereof  "  the  accumulating  water  has  been 
turned  with  great  force  over  and  upon  the  plaintiff's  land,  and  thereby 
the  plaintiff's  land  "  has  become  greatly  washed  and  carried  away  and 
said  "  land  of  the  plaintiff  "  has  thereby  been  rendered  of  no  value." 

There  was  evidence  supporting  the  declaration,  and  also  that  the 
plaintiff  had  enjoyed  the  flow  of  the  water  for  twenty  years  and  more 
without  interruption,  until  the  acts  complained  of. 

Certain  instructions  to  the  jury  were  asked  for  by  the  defendant 
and  refused,  which  were  based  on  the  view  that  the  defendant  had  an 
absolute  and  unqualified  right  to  do  as  he  pleased  with  the  water. 
Instructions  were  given  on  the  other  hand  to  the  effect  that  the  jury 
might  find,  on  the  evidence  before  them,  that  the  plaintiff  had 
acquired  by  prescription  a  right  to  the  flow  of  the  water  in  ques- 
tion, and  if  he  had  that  he  was  entitled  to  recover;  to  this  the  defend- 
ant excepted. 

Verdict  for  the  plaintiff;  motion  for  a  new  trial,  also  in  arrest  of 
judgment  on  the  alleged  insufficiency  of  the  declaration. 

Bellows,  C.  J.  In  respect  to  water  not  gathered  into  a  stream,  but 
circulating  through  the  pores  of  the  earth,  beneath  its  surface,  it  is 
now  settled  that  a  landowner  who,  in  the  reasonable  use  of  his  own 
land,  obstructs  or  diverts  the  flow  of  such  water,  even  to  the  injury 
of  his  neighbor's  land,  is  not  liable  to  respond  in  damages.  This 
is  not  upon  the  principle  that  has  been  in  some  cases  adopted,  that 
the  landowner  has  the  absolute  and  unqualified  property  in  all  such 
water  as  may  be  found  in  his  soil,  and  may  therefore  do  what  he 
pleases  with  it,  as  with  the  sand  and  rock  that  form  part  of  that 
soil,  but  upon  the  same  general  principle  that  governs  the  use  of 
water  flowing  on  the  surface  in  well-defined  streams  or  channels ;  that 
is,  to  make  a  reasonable  use  of  it  for  domestic,  agricultural,  and 
manufacturing  purposes,  not  trenching,  however,  upon  the  similar 
rights  of  others.  So  in  respect  to  water  percolating  through  the  soil, 
the  landowner  may  ordinarily  drain  his  land,  may  obstruct  the  usual 
course  of  the  flow  of  such  water  by  walls  for  cellars  and  other  pur- 
poses, and  may  dig  wells  and  use  the  water  for  domestic  and  agri- 
cultural purposes.  The  test  is,  the  reasonableness  of  the  use  or  dis- 
position of  such  water;  and  ordinarily  that  is  a  question  of  fact 
for  the  jury  under  the  instructions  of  the  court. 

In  favor  of  the  unqualified  and  absolute  right  of  the  landowner  to 
dispose  of  all  such  water  as  he  finds  in  his  soil,  or  that  he  may  draw 
there  by  wells  dug  in  his  own  land,  it  is  urged  that  he  cannot  know 
the  condition  of  the  water  beneath  the  surface,  the  changes  that  take 
place,  or  the  sources  of  supply  of  the  springs  and  wells  in  the  ad- 
joining lands,  or  what  portion  is  drawn  from  his  own  soil  and  what 
was  originally  found  in  his  neighbor's,  and  therefore  that  there  is  no 


580  SWETT    t'.    CUTTS.  [CilAP.    XVI. 

ground  for  presuming  a  mutual  agreement  Ijetween  the  landowners 
in  ages  past  in  respect  to  such  underground  water  or  for  holding 
a  right  to  have  been  acquired  by  use  or  acquiescence.  So  is  the  lead- 
ing case  of  Acton  v.  Blundell,  12  M.  &  W.  336. 

In  the  first  place  we  do  not  understand  that  the  right  of  the  riparian 
owner  to  the  use  of  streams  of  water  running  upon  the  surface  is  to  be 
deduced  from  the  presumed  mutual  agreement  or  acquiescence  of 
landowners,  but  rather  as  a  natural  right,  incident  to  the  land, 
to  partake  in  the  enjoyment  of  the  common  bounty  of  Providence,  as 
in  the  cases  of  light  and  air.  Dickinson  v.  Grand  Junction  Canal  Co., 
7  Ex.  299 ;  Shury  v.  Piggot,  3  Bulstr.  339 ;  Chasemore  v.  Eichards,  2 
H.  &  N.  168 ;  1  Tyler  v.  Wilkinson,  4  Mason,  397.  And  in  the  second 
place  although  it  may  be  true  that  in  the  majority  of  cases  the  condi- 
tion of  the  waterflow  beneath  the  surface  is  not  accurately  known, 
yet  in  a  great  many  instances  its  general  course,  from  the  slope  of 
the  surface,  the  appearance  of  springs  and  other  indications  of  water, 
is  quite  obvious.  Indeed  this  doctrine  appears  to  embrace  that  large 
class  of  cases  where  the  water  flows  in  sight  upon  the  surface  in  wet 
seasons  of  the  year,  but  not  to  such  an  extent  as  to  mark  a  regular 
channel  with  banks  and  sides,  and  also  where  the  water  moves  slowly, 
but  obviously,  through  boggy  or  swampy  lands  constituting  the  sources 
of  streams  and  rivers.  The  doctrine  in  fact  would  justify  a  land- 
owner in  intercepting  and  diverting  the  water  so  working  its  way 
through  spongy  or  swampy  land  at  any  point,  before  it  was  gathered 
into  a  regular  channel,  although  it  might  be  obvious  that  such  water 
was  the  source  of  a  stream  which  furnished  valuable  mill-sites,  even 
although  such  diversion  was  in  no  way  necessary  to  the  enjoyment  of 
his  land. 

The  contrary  doctrine  in  respect  to  water  percolating  beneath  the 
surface  is  established  in  this  State  in  the  well-considered  case  of  Bas- 
sett  V.  Salisbury  Manufacturing  Co.,  43  N.  H.  569 ;  and  the  question 
is,  whether  the  doctrine  of  that  case  applies  to  water  which  appears 
on  the  surface  in  the  season  of  melting  snow  and  heavy  rains,  but 
is  not  gathered  into  any  regular  channel  or  watercourse,  or  whether 
such  water  stands  upon  the  footing  of  permanent  streams  running 
upon  the  surface  in  regular  channels.  If  upon  the  latter  footing, 
then  the  instructions  were  sufficiently  favorable  to  tlie  defendant. 

Upon  the  examination  of  the  cases  which  maintain  the  doctrine  that 
the  landowner  may  dispose  of  the  water  percolating  beneath  his  soil 
as  he  pleases,  they  will  be  found  to  include  the  case  of  mere  surface 
water  not  gathered  into  streams.  In  Eawstron  v.  Taylor,  11  Ex.  380, 
it  is  laid  down  by  Parke,  B.,  in  the  opinion  of  the  court,  that  in  the 
case  of  common  surface  water  rising  out  of  springy  or  boggy  ground 
and  flowing  in  no  (Icfinite  channel,  although  contributing  to  the 
supply  of  the  plaintiff's  mill,  the  supply  being  merely  casual  and  the 

>  7  H.  L.  Cas.  341). 


CHAP.    XVI.]  VIOLATION    OF    WATER   RIGHTS.  581 

water  having  no  defined  course,  the  defendant  is  entitled  to  get  rid 
of  it  as  he  pleases.  The  same  doctrine  is  announced  in  Broadbent  v. 
Eamsbotham,  11  Ex.  G02,  which  was  an  action  for  diverting  water 
on  defendant's  land. which  naturally  flowed  over  the  surface  of  a 
hill  into  a  brook  which  supplied  plaintiff's  mill.  The  court,  per 
Alderson,  B.,  says  the  right  of  the  plaintiff  cannot  extend  further 
than  the  right  to  the  flow  in  the  brook  itself,  and  to  the  water  flowing 
in  some  defined  natural  channel,  either  subterranean  or  on  the  surface, 
communicating  directly  with  the  brook  itself.  No  doubt,  he  says,  all 
the  water  falling  from  heaven  and  shed  upon  the  surface  of  the  hill  at 
the  foot  of  which  the  brook  runs  must,  by  the  natural  force  of  gravity, 
find  its  way  to  the  bottom  and  so  into  the  brook;  biit  this  does  not 
prevent  the  owner  of  the  land  on  which  this  water  falls  from  dealing 
with  it  as  he  may  please,  and  appropriating  it.  He  cannot,  it  is 
true,  do  so  if  the  water  has  arrived  at  and  is  flowing  in  some  natural 
channel  already  formed.  But  he  has  a  perfect  right  to  appropriate  it 
before  it  arrives  at  such  a  channel. 

It  is  quite  clear  that  such  surface  water  is  put  upon  the  same  foot- 
ing as  water  percolating  beneath  the  surface;  and  the  cases  are  quite 
numerous  that  show  it,  and  we  think  it  should  be  so  upon  principle. 
The  great  objection  to  applying  the  doctrine  which  forbids  the  diver- 
sion of  running  streams  to  water  circulating  in  the  pores  of  the  earth 
is  that,  if  applied  without  qualification,  it  would  to  a  great  extent 
prevent  the'  beneficial  enjoyment  and  improvement  of  one's  own  land. 
A  similar  effect,  though  less  extensive,  would  be  produced  by  apply- 
ing that  doctrine  to  mere  surface  water  not  gathered  into  any  regular 
and  defined  channel.  In  many  cases  of  springy  and  swampy  lands  the 
water  moves  from  a  higher  to  a  lower  level  over  a  wide  space,  which 
under  such  a  doctrine  could  not  be  drained  or  reclaimed.  So  in  case 
of  rain  falling  upon  the  side  of  a  hill,  and  which  would  naturally 
find  its  way  upon  the  surface  into  a  brook  at  the  bottom  —  such  a 
doctrine  might  effectually  prevent  the  improvement  of  very  extensive 
tracts  of  land. 

Again :  the  boundary  line  between  what  shall  be  deemed  under- 
ground percolation  and  mere  surface  water  would  often  be  extremely 
difficult  to  define,  and  from  that  source  serious  embarrassments  might 
arise.  From  the  nature  of  the  case,  then,  we  think  that  the  line  is 
properly  drawn  between  water  running  in  natural  streams,  with  well- 
defined  channels,  and  that  which  is  merely  spread  over  the  surface 
and  flows  without  any  regular  course  or  channel  or  circulates  under 
the  surface  through  the  pores  of  the  earth.  The  authorities  are 
numerous  to  this  point,  besides  those  already  cited.  Among  them 
are  3  Kent's  Com.  439,  note  2,  and  cases;  Ashley  v.  Wolcott,  11 
Cush.  192;  Luther  v.  Winnisimmet  Co.,  9  Cush.  171;  Wheatley  v. 
Baugh,  25  Penn.  St.  528;  Buffam  v.  Harris,  5  R.  I.  243.  See  also 
Ellis  V.  Duncan,  21  Barb.  230;  Washburn,  Easements,  358,  and  cases 
cited. 


582  SWETT    V.    CUTTS.  [CHAP.   XVI. 

These  authorities,  to  be  sure,  hold  generally  that,  in  respect  to  mere 
surface  and  underground  water  not  gathered  into  streams,  the  land- 
owner where  it  is  found  has  the  unqualified  right  to  dispose  of  it  as 
he  pleases,  although  in  some  cases  the  right  appears  to  be  limited  to 
cases  where  it  is  dealt  with  in  the  improvement  of  such  owner's  land, 
and  without  malice;  as  in  Wheatley  v.  Baugh,  25  Penn.  St.  532.  But 
these  cases  concur  in  putting  all  water  not  gathered  into  watercourses, 
whether  upon  the  surface  or  underneath,'  on  the  same  footing ;  and  so 
far  we  think  they  are  right.  As  however  the  case  of  Bassett  v.  Salis- 
bury Manufacturing  Co.  holds,  in  respect  to  water  percolating  through 
the  soil,  that  the  landowner's  right  to  obstruct  or  divert  it  is  limited 
to  what  is  necessary  in  the  reasonable  use  of  his  own  land,  we  think 
the  same  rule  must  be  applied  to  mere  surface  water  not  gathered 
into  a  stream. 

To  give  the  landowner  the  absolute  and  unqualified  right  of  disposi- 
tion of  such  water  would  in  many  instances  be  productive  of  great 
mischief  to  his  neighbors  and  lead  to  interminable  struggles  between 
them ;  for  the  same  power  to  deal  with  such  water  would  exist  in  each 
landowner  when  it  was  on  his  land.  In  many  instances  the  water 
would  assume  so  much  of  the  character  of  a  natural  watercourse  as 
to  make  the  application  of  such  a  doctrine  odious  and  unjust,  while 
at  the  same  time  a  total  want  of  power  to  modify  such  flow  to  meet 
the  necessities  of  the  landowner  would  often  stand  in  the  way  of 
valuable  improvements  which  might  be  made  without  serious  detri- 
ment to  any  one. 

The  doctrine  which  we  maintain  adapts  itself  to  the  ever  varying 
circumstances  of  each  particular  case,  from  that  which  makes  a  near 
approach  to  a  natural  watercourse  down  by  imperceptible  gradations 
to  the  case  of  mere  percolation,  giving  to  each  landowner,  while  in 
the  reasonable  use  and  improvement  of  his  land,  the  right  to  make 
reasonable  modifications  of  the  flow  of  such  water  in  and  upon  his 
land.  In  determining  this  question  all  the  circumstances  of  the  case 
would  of  course  be  considered;  and  among  them  the  nature  and  im- 
portance of  the  improvements  sought  to  be  made,  the  extent  of  the 
interference  with  the  water,  and  the  amount  of  injury  done  to  the 
other  landowners  as  compared  with  the  value  of  such  improvements, 
and  also  whether  such  injury  could  or  could  not  have  been  reasonably 
foreseen. 

Ordinarily  a  landowner  may  dig  a  well  upon  his  own  land,  even 
though  by  percolation  it  draws  the  water  from  his  neighbor's  land, 
or  even  his  well ;  but  it  would  present  a  very  different  question  if  the 
well  waH  dug  by  him  with  the  express  purpose  of  transferring  the 
water  in  his  neighbor's  spring  or  well  to  his  own  and  knowing  that 
this  would  be  the  result.  So  too  the  owner  of  extensive  swamp  lands, 
which  an;  the  source  of  a  river  furnishing  valuable  mill  sites,  might 
reasonably  l)e  allowed    to   drain    it  by  bringing   the  water  into   one 


CHAP.    XVI.]  VIOLATION    OF    WATER   RIGHTS.  583 

channel,  when  it  might  be  regarded  as  unreasonable  to  divert  it  en- 
tirely from  its  natural  course.  So  also  excavations  maliciously  made 
in  one's  own  land,  with  a  view  to  destroy  a  spring  or  well  in  his 
neighbor's  land,  could  not  be  regarded  as  reasonable ;  and  there  would 
be  much  ground  for  holding  that  if  the  spring  or  well  in  his  neigh- 
bor's land  could  be  preserved  without  material  detriment  to  the  land- 
owner making  such  excavations,  it  would  be  evidence  of  malice  or  such 
negligence  as  to  be  equivalent  to  malice.  Wheatley  v.  Baugh,  25  Perm. 
St.  533. 

In  the  case  before  us  the  instructions  asked  for  by  the  defendant 
assumed  that  he  had  an  absolute  and  unqualified  right  to  dispose  of 
this  water  as  he  pleased,  while  the  instructions  given  assumed  that  if 
the  state  of  things  proved  had  existed  from  time  beyond  memory  the 
defendant  had  no  right  at  all  to  stop  the  flow  of  this  water  over  his 
land  and  thus  cause  it  to  flow  over  the  plaintiff's  land.  If  this  was 
mere  surface  water  not  gathered  into  a  watercourse,  as  we  should  infer 
it  was  from  the  case,  the  instructions  ^  upon  the  principles  we  have 
stated  are  erroneous,  unless  the  plaintiff  had  acquired  a  right  by  pre- 
scription to  have  the  water  flow  over  the  defendant's  land.  On  that 
point,  to  constitute  a  title  by  prescription  there  must  have  been  an 
adverse  user  under  a  claim  of  right  for  twenty  years  or  more;  but 
here  there  has  been  no  such  user ;  the  defendant  has  merely  permitted 
the  surface  water  casually  on  his  land  to  flow  off  over  it.  It  does  not 
appear  that  the  plaintiff  has  claimed  or  exercised  a  right  to  discharge 
the  water  on  his  land  upon  the  defendant's  land,  or  that  he  has  ever 
done  any  act  or  put  himself  in  a  situation  by  reason  of  which  the 
defendant  could  maintain  a  suit  against  him  and  thus  interrupt  a 
process  of  gaining  title  by  prescription.  It  is  true  that  some  water 
which  had  gathered  on  the  plaintiff's  land  may  have  passed  off  in  the 
same  way  over  the  defendant's  land,  but  if  it  did  it  was  by  no  act  of 
the  plaintiff  nor  under  any  claim  of  right  by  him.  So  the  fact  that 
this  water  had  passed  over  the  defendant's  land  for  more  than  twenty 
years  does  not  change  its  character  and  make  it  a  watercourse. 

In  Wood  V.  Waud,  3  Ex.  778,  the  court  holds  that  the  right  to 
watercourses  arising  from  enjoyment  is  not  the  same  in  respect  to 
natural  and  artificial  watercourses;  holding  that  as  to  the  latter  the 
right  must  depend  upon  their  character,  whether  of  a  permanent  or 
temporary  nature,  and  upon  the  circumstances  under  which  they  are 
created ;  and  by  way  of  illustration  say  that  the  flow  of  water  from  a 
drain,  for  the  purpose  of  agricultural  improvements,  for  twenty  years 
could  not  give  a  right  to  a  neighbor  so  as  to  preclude  the  proprietor 
from  altering  the  level  of  his  drains  for  the  greater  improvement  of 
his  land. 

This  precise  case  arose  in  Greatrex  v.  Heywood,  8  Ex.  291,  and  was 

1  That  is.  that  the  plaintiff  could  recover  if  he  had  enjoved  the  flow  for  twenty 
years  without  interruption. 


584  SWETT    V.    CUTIS.  [chap.    XVI. 

settled  in  accordance  with  this  doctrine  of  Wood  v.  Waud.  The  same 
doctrine  was  applied  in  the  case  of  drains  for  mining  purposes,  in 
Arkwright  v.  Gell,  5  M.  &  W.  203.  In  these  cases,  from  the  temporary 
nature  of  such  drains  and  artificial  watercourses,  is  deduced  the  in- 
ference that  the  use  of  the  water  discharged  hy  them  could  not  have 
been  enjoyed  as  matter  of  right.  See  Wood  v.  ^^'aud,  3  Ex.  778.  In 
the  subsequent  case  of  Rawstron  v.  Taylor,  11  Ex.  369,  surface  water 
on  defendant's  land  for  more  than  twenty  years  had  flowed  over  land 
of  the  plaintiff  into  his  watercourse,  and  he  had  used  it;  but  it  was 
held  that  plaintiff  could  maintain  no  action  against  defendant  for 
diverting  it  on  his  own  land. 

In  respect  to  water  percolating  beneath  the  surface  the  tendency 
of  the  authorities  is  against  acquiring  a  right  by  prescription.  The 
use  of  such  water  upon  one's  own  land  is  apparently  rightful,  and  is  no 
such  invasion  of  the  rights  of  the  adjoining  owner  as  would  enable 
him  to  maintain  a  suit,  for  it  would  be  impossible  to  know  that  he  was 
drawing  water  from  his  neighbor's  land.  Wash.  Easements,  38-1-390, 
and  cases  cited.  In  this  respect  water  that  comes  to  the  surface  stands 
on  a  different  footing,  and  yet  in  general  they  are  governed  by  the 
same  rules.  There  may  doubtless  be  cases  where  rights  may  be 
acquired  by  user  in  respect  to  such  surface  water,  as  in  the  case  of 
eaves-drip ;  but  it  can  be  only  when  the  use  is  adverse  and  such  as  to 
give  notice  to  the  party  against  whom  the  right  is  acquired.  In  the 
case  before  us,  however,  no  right  of  the  defendant  was  invaded  by  any 
act  of  the  plaintiff.  He  (the  defendant)  simply  permitted  the  water 
gathered  by  the  roadside  to  flow  over  his  land,  and  so  long  as  he  did 
so  he  could  maintain  no  action  against  any  one;  and  we  think  the 
plaintiff  had  gained  no  right  by  prescription  to  have  this  water  flow 
over  the  defendant's  land,  and  there  must  be 

A  new  trial. 


ClIAP,    XVI].]  NUISANCE.  585 


CHAPTER   XVII. 

NUISANCE. 

HAUCK  V.  TIDEWATER  PIPE  LINE  CO. 

Supreme  Court  of  Pennsylvania,  February,  1893.     153  Penn.  St.  366. 

Appeal  by  the  defendants  from  a  verdict  and  judgment  against 
them  in  an  action  for  damages  resulting  from  nuisance  to  property. 
The  defendants  were  a  limited  partnership  company,  in  the  business 
of  laying  pipes  and  carrying  oil  through  the  same  in  the  oil  region  of 
Pennsylvania.  The  business  relating  to  the  present  suit  was  con- 
ducted entirely  upon  the  defendants'  premises,  —  but  the  oil  was 
brought  from  elsewhere;  and  the  plaintiffs  complained  that  oil  had 
escaped  from  the  defendants'  pipes  and  percolated  into  the  plaintiffs' 
land  and  poisoned  the  plaintiffs'  springs  and  a  mill  pond,  destroying 
fish  in  the  latter  and  making  a  dwelling-house  on  the  plaintiffs'  land 
unfit  for  use  as  such.  The  defendants  had  no  power  to  take  property 
by  eminent  domain. 

The  defendants  contended  that  they  were  liable,  not  for  nuisance, 
but  only  on  proof  of  negligence.  The  case  turned  upon  certain  alleged 
errors  of  the  lower  court,  which  are  set  out  in  the  opinion  below. 

Paxson,  C.  J.  .  .  .  The  fifth  specification  alleges  that  the  court 
below  erred  in  declining  to  affirm  the  defendants'  fourth  point.  The 
point  was  as  follows : 

"  That  the  defendant  is  not  liable  for  damages  resulting  from  its 
business  by  reason  of  oil  escaping  from  its  own  lands  where  it  is 
being  handled,  except  such  oil  escapes  through  negligence  of  the 
company  or  its  agents." 

This  point  presents  the  main  feature  of  the  case.  The  court  below 
refused  it,  upon  the  ground  that  it  was  a  question  of  nuisance  and 
not  of  negligence,  citing  Pottstown  Gas  Company  v.  Murphy,  39  Pa. 
257,  in  support  of  this  view.  In  that  case  it  was  held  that  the  gas 
company  was  answerable  for  consequential  damages,  such  as  the  cor- 
ruption of  the  plaintiff's  ground  and  well,  by  the  fluids  percolating 
from  the  works ;  and  that  a  corporation  is  exempt  from  consequential 
damages  only  where,  being  clothed  with  the  State's  right  of  eminent 
domain,  it  takes  private  property  for  public  use  upon  making  proper 
compensation,  and  where  such  damages  are  not  part  of  the  compensa- 
tion required. 

We  think  the  learned  judge  was  right  under  the  authority  above 


586  HAUCK   V.    TIDEWATER   PIPE    LINE    CO.  [CHAP.    XVII. 

cited,  in  holding  that  this  was  not  a  case  of  negligence,  but  of  nuisance 
or  of  consequential  damages.  For  this  reason  we  think  that  the  case 
of  The  Railroad  Company  v.  Lippincott,  116  Pa.  472,  and  of  Railroad 
Company  v.  Marchant,  119  Pa.  559,  have  no  application.  The  rail- 
road companies  in  those  cases  were  clothed  with  the  right  of  eminent 
domain,  and  were  expressly  authorized  by  law  to  construct  their  roads 
and  operate  them.  It  was  held  therefore  that  any  injury  resulting 
from  such  operation,  without  negligence  and  without  malice,  was 
damnum  absque  injuria.  In  the  case  in  hand  the  company  was  clothed 
with  no  such  powers. 

We  think  the  case  closely  resembles  that  of  Robb  v.  Carnegie,  145 
Pa.  324,  in  which  it  was  held  that  the  owners  of  coke  ovens,  the  gases 
from  which  injured  the  growing  crops  upon  the  adjoining  farm,  were 
liable  in  damages  to  the  owner  of  said  farm  for  such  injury.  An 
attempt  was  made  in  that  case,  as  it  has  been  made  in  this,  to  bring 
it  within  the  doctrine  of  Pennsylvania  Coal  Company  v.  Sanderson, 
113  Pa.  126.  In  the  latter  case  the  injuries  complained  of  were  the 
natural  and  necessary  result  of  the  development  by  the  owner  of  the 
resources  of  his  own  land.  In  opening  a  drift  for  the  purpose  of 
mining  coal,  the  mine  water,  impregnated  with  the  impurities  which 
it  had  taken  up  from  the  earth,  coal  and  other  minerals  in  the  mines, 
either  flowed  from  the  mouth  of  the  drift,  or  was  pumped  from  the 
mines,  and  allowed  to  take  its  natural  course  on  its  way  to  the  ocean. 
It  will  thus  be  seen  that  the  flow  of  mine  water  was  the  natural  and 
necessary  result  of  the  development  by  the  owner  of  his  own  property. 
This  was  not  the  case  in  Robb  v.  Carnegie,  nor  is  it  the  case  here. 
In  Robb  V.  Carnegie  the  refuse  coal  which  was  used  for  making  coke 
was  not  mined  upon  the  premises  of  the  company,  but  was  brought 
from  other  mines  at  a  distance.  In  the  case  in  hand  the  oil  which 
was  the  cause  of  the  injury  to  the  plaintiffs'  property  was  brought 
from  a  distance,  allowed  to  escape  from  the  pipes  and  to  percolate 
through  plaintiff's  land  and  destroy  his  springs.  It  was  not  in  any 
sense  a  natural  and  necessary  development  of  the  land  owned  by  the 
company. 

The  appellants  attempted  to  distinguish  this  case  from  Robb  v. 
Carnegie  by  the  fact  that  in  the  latter  case  the  smoke  and  gases  from 
the  works  were  carried  by  the  wind  and  lodged  upon  the  plaintiffs' 
land;  while  in  the  latter  [sic,  for  present]  case  the  escaping  oil  merely 
percolated  through  the  soil  until  it  reached  plaintiff's  springs.  The 
essential  difference  between  being  carried  through  the  air  and  perco- 
lating through  the  soil  has  not  been  made  to  appear.  We  regard  it  as 
a  distinction  without  a  difference. 

As  was  correctly  said  by  the  learned  judge  in  a  portion  of  his  charge 
embraced  in  tlic  tenth  specification:  "If  the  mere  fact  that  the  busi- 
ness is  a  lawful  business,  and  has  been  conducted  with  care,  would  be 
a  defence  where  a  neighbor's  land  had  been  injured  in  consequence  of 


CHAP,    XVII.]  NUISANCE.  587 

the  business  carried  on  there,  the  escape  of  gas,  for  instance,  or  the 
escape  of  oil,  the  result  would  be  that  a  man  might  lose  his  farm,  — 
might  be  compelled  to  leave  it,  and  have  no  compensation,  simply  be- 
cause the  business  which  brought  about  this  loss  was  a  lawful  business 
and  was  carried  on  carefully.  That  is  not  the  law.  No  man's  prop- 
erty can  be  taken,  directly  or  indirectly,  without  compensation,  under 
the  law  of  this  State.  Hence  there  are  cases,  and  a  great  many  of 
them,  where  a  defendant  is  held  liable  in  damages,  although  his  busi- 
ness is  lawful  and  he  has  exercised  care  in  carrying  it  on." 

In  the  consideration  of  this  class  of  cases  care  must  be  taken  to 
distinguish  between  the  natural  and  necessary  development  of  the  land 
itself  and  injuries  resulting  from  the  character  of  some  business  not 
incident  and  necessary  to  the  development  of  the  land  or  the  minerals 
or  other  substances  lying  within  it.  The  owner  of  the  land  has  the 
right  to  develop  it  by  digging  for  coal,  iron,  gas,  oil,  or  other  minerals, 
and  if  in  the  progress  of  this  development  an  injury  occurs  to  the 
owner  of  adjoining  land,  without  fault  or  negligence  on  his  part,  an 
action  for  such  injury  cannot  be  maintained.  If  this  were  not  so,  a 
man  might  be  utterly  deprived  of  the  use  of  his  property.  It  is  not 
so  where  the  injury  is  caused  by  the  prosecution  of  a  business  which  has 
no  necessary  relation  to  the  land  itself,  and  is  not  essential  to  its 
development. 

Judgment  affirmed. 


ST.  HELEN'S  SMELTING  CO.  v.  TIPPING. 

House  of  Lords  of  England,  1865.     11  H.  L.  Cas.  642. 

This  was  an  action  brought  by  the  plaintiff  to  recover  damages  for 
injuries  done  to  his  trees  and  crops  by  the  defendants'  works.  The 
defendants  are  the  directors  and  shareholders  of  the  St.  Helen's  Cop- 
per-Smelting Company  (limited).  The  plaintiff,  in  1860,  purchased 
a  large  portion  of  the  Bold  Hall  estate,  consisting  of  the  manor-house 
and  about  1,300  acres  of  land,  within  a  short  distance  of  which  stood 
the  works  of  the  defendants.  The  declaration  alleged  that  "  the  de- 
fendants erected,  used,  and  continued  to  use,  certain  smelting  works 
upon  land  near  to  the  said  dwelling-house  and  lands  of  the  plaintiff, 
and  caused  large  quantities  of  noxious  gases,  vapors,  and  other 
noxious  matter  to  issue  from  the  said  works  and  diffuse  themselves 
over  the  land  and  premises  of  the  plaintiff,  whereby  the  hedges,  trees, 
shrubs,  fruit,  and  herbage  were  greatly  injured;  the  cattle  were 
rendered  unhealthy,  and  the  plaintiff  was  prevented  from  having  so 
beneficial  a  use  of  the  said  land  and  premises  as  he  would  otherwise 
have  enjoyed;  and  also  the  revisionary  lands  and  premises  were  de- 
preciated in  value."     The  defendants  pleaded  not  guilty. 


588  ST.  Helen's  co.  v.  tipping.  [chap.  xvn. 

The  cause  was  tried  before  Mr.  Justice  Mellor,  at  Liverpool,  in 
August,  1863,  when  the  plaintiff  was  examined,  and  spoke  distinctly 
to  the  damage  done  to  his  plantations,  and  to  the  very  unpleasant 
nature  of  the  vapors,  which,  when  the  wind  was  in  a  particular  direc- 
tion, affected  persons  as  well  as  plants  in  his  grounds.  On  cross- 
examination,  he  said  he  had  seen  the  defendant's  chimney  before  he 
purchased  the  estate,  but  he  was  not  aware  whether  the  works  were 
then  in  operation.  On  the  part  of  the  defendants,  evidence  was  in- 
troduced to  show  that  the  whole  neighborhood  was  studded  with  manu- 
factories and  tall  chimneys ;  that  there  were  some  alkali  works  close  by 
the  defendant's  works ;  that  the  smoke  from  one  was  quite  as  injurious 
as  the  smoke  from  the  other ;  that  the  smoke  of  both  sometimes  united ; 
and  that  it  was  impossible  to  say  to  which  of  the  two  any  particular 
injury  was  attributable.  The  fact  that  the  defendant's  works  existed 
before  the  plaintiff  bought  the  property  was  also  relied  on. 

The  learned  judge  told  the  jury  that  an  actionable  injury  was  one 
producing  sensible  discomfort ;  that  every  man,  unless  enjoying  rights 
obtained  by  prescription  or  agreement,  was  bound  to  use  his  own 
property  in  such  a  manner  as  not  to  injure  the  property  of  his  neigh- 
bors; that  there  was  no  prescriptive  right  in  this  case;  that  the  law 
did  not  regard  trifling  inconveniences ;  that  everything  must  be  looked 
at  from  a  reasonable  point  of  view;  and,  therefore,  in  an  action  for 
nuisance  to  property,  arising  from  noxious  vapors,  the  injury  to  be 
actionable  must  be  such  as  visibly  to  diminish  the  value  of  the  property 
and  the  comfort  and  enjoyment  of  it;  that  when  the  jurors  came  to 
consider  the  facts,  all  the  circumstances,  including  those  of  time  and 
locality,  ought  to  be  taken  into  consideration;  and  that  with  respect 
to  the  latter  it  was  clear  that  in  countries  where  great  works  had  been 
erected  and  carried  on,  persons  must  not  stand  on  their  extreme  rights 
and  bring  actions  in  respect  of  every  matter  of  annoyance,  for  if  so, 
the  business  of  the  whole  country  would  be  seriously  interfered  with. 

The  defendant's  counsel  submitted  that  the  three  questions  which 
ought  to  be  left  to  the  jury  were,  "  whether  it  was  a  necessary  trade ; 
whether  the  place  was  a  suitable  place  for  such  a  trade;  and  whether 
it  was  carried  on  in  a  reasonable  manner."  The  learned  judge  did 
not  put  the  questions  in  this  form,  but  did  ask  the  jury  whether  the 
enjoyment  of  the  plaintiff's  property  was  sensibly  diminished,  and  the 
answer  was  in  the  affirmative;  whether  the  business  there  carried  on 
was  an  ordinary  business  for  smelting  copper,  and  the  answer  was, 
"  We  consider  it  an  ordinary  business,  and  conducted  in  a  proper  man- 
ner, in  as  good  a  manner  as  possible."  But  to  the  question  whether 
the  jurors  thouglit  that  it  was  carried  on  in  a  proper  place,  the  answer 
was,  "  We  do  not."  The  verdict  was  tlicrefore  entered  for  the  plain- 
tiff, and  the  damages  were  assessed  at  £3f)l  18s.  4yo(i.  A  motion  was 
made  for  a  new  trial  on  the  ground  of  misdirection,  but  the  rule  was 
refused.    4  Best  &  S.  GOB.    Leave  was,  however,  given  to  appeal,  and 


CHAP.    X\n.\  NUISANCE.  589 

the  case  was  carried  to  tlic  Exchequer  Chamber,  where  the  judgment 
was  affirmed.    4  Best  &  S.  filfi. 

The  judges  were  summoned,  and  Mr.  Baron  Martin,  Mr.  Justice 
WiJles,  Mr.  Justice  Blackburn,  Mr.  Justice  Keating,  Mr.  Baron  Pigott, 
and  Mr.  Justice  Shee  attended. 

After  the  argument,  the  Lord  Chancellor  (Lord  ^Yestbu^y)  proposed 
these  questions  to  the  judges:  "Whether  directions  given  by  the 
learned  judge  at  nisi  prius  to  the  jury  were  correct?  or.  Whether  a 
new  trial  ought  to  be  granted  in  this  case  ?  " 

Upon  a  short  consultation  among  the  judges,  Mr.  Baron  Martin 
answered  tliat  the  directions  were  correct,  being  such  as  had  been  given 
in  cases  of  this  kind  for  the  last  twenty  years. 

The  Lord  Chancellor.  My  lords,  I  think  your  Lordships  will  be 
satisfied  with  the  answer  we  have  received  from  the  learned  judges  to 
the  questions  put  by  this  House. 

My  lords,  in  matters  of  this  description  it  appears  to  me  that  it  is 
a  very  desirable  thing  to  mark  the  difference  between  an  action  brought 
for  a  nuisance  upon  the  ground  that  the  alleged  nuisance  produces 
material  injury  to  the  property,  and  an  action  brought  for  a  nuisance 
on  the  ground  that  the  thing  alleged  to  be  a  nuisance  is  productive  of 
sensible  personal  discomfort.  With  regard  to  the  latter,  namely,  the 
personal  inconvenience  and  interference  with  one's  enjo3Tnent,  one's 
quiet,  one's  personal  freedom,  anything  that  discomposes  or  injuriously 
affects  the  senses  or  the  nerves,  whether  that  may  or  may  not  be  de- 
nominated a  nuisance,  must  undoubtedly  depend  greatly  on  the  cir- 
cumstances of  the  place  where  the  thing  complained  of  actually  occurs. 
If  a  man  lives  in  a  town,  it  is  necessary  that  he  should  subject  himself 
to  the  consequences  of  those  operations  of  trade  which  may  be  carried 
on  in  his  immediate  locality,  which  are  actually  necessary  for  trade 
and  commerce,  and  also  for  the  enjoyment  of  property,  and  for  the 
benefit  of  the  inhabitants  of  the  town  and  of  the  public  at  large.  If 
a  man  lives  in  a  street  where  there  are  numerous  shops,  and  a  shop  is 
opened  next  door  to  him,  which  is  carried  on  in  a  fair  and  reasonable 
way,  he  has  no  ground  for  complaint  because  to  himself  individually 
there  may  arise  much  discomfort  from  the  trade  carried  on  in  that 
shop.  But  when  an  occupation  is  carried  on  by  one  person  in  the 
neighborhood  of  another,  and  the  result  of  that  trade  or  occupation 
or  business  is  a  material  injury  to  property,  then  there  unquestionably 
arises  a  very  different  consideration.  I  think,  my  lords,  that  in  a  case 
of  that  description,  the  submission  which  is  required  from  persons  liv- 
ing in  society  to  that  amount  of  discomfort  which  may  be  necessary 
for  the  legitimate  and  free  exercise  of  the  trade  of  their  neighbors, 
would  not  apply  to  circumstances  the  immediate  result  of  which  is 
sensible  injury  to  the  value  of  the  property. 

Now,  in  the  present  case  it  appears  that  the  plaintiff  purchased  a 
very  valuable  estate,  which  lies  within  a  mile  and  a  half  from  certain 


590  ST.  Helen's  co.  v.  tipping.  [chap,  xyii. 

large  smelting  works.  What  the  occupation  of  these  copper-smelting 
premises  was  anterior  to  the  year  18G0  does  not  clearly  appear.  The 
plaintiff  became  the  proprietor  of  an  estate  of  great  value  in  the  month 
of  June,  1860.  In  the  month  of  September,  1860,  very  extensive 
smelting  operations  began  on  the  property  of  present  appellants,  in 
their  works  at  St.  Helen's.  Of  the  effect  of  the  vapors  exhaling  from 
those  works  upon  the  plaintiff's  property,  and  the  injury  done  to  his 
trees  and  shrubs,  there  is  abundance  of  evidence  in  the  case. 

My  lords,  the  action  has  been  brought  upon  that,  and  the  jurors 
have  found  the  existence  of  the  injury;  and  the  only  ground  upon 
which  your  lordships  are  asked  to  set  aside  that  verdict  and  to  direct 
a  new  trial  is  this,  that  the  whole  neighborhood  where  these  copper- 
smelting  works  were  carried  on  is  a  neighborhood  more  or  less  devoted 
to  manufacturing  purposes  of  a  similar  kind,  and,  therefore,  it  is  said 
that  inasmuch  as  this  copper  smelting  is  carried  on  in  what  the  appel- 
lant contends  is  a  fit  place,  it  may  be  carried  on  with  impunity,  al- 
though the  result  may  be  the  utter  destruction,  or  the  very  considerable 
diminution,  of  the  value  of  the  plaintiff's  property.  My  lords,  I  appre- 
hend that  that  is  not  the  meaning  of  the  word  "  suitable,"  or  the 
meaning  of  the  word  "  convenient,"  which  has  been  used  as  applicable 
to  the  subject.  The  word  "  suitable "  unquestionably  cannot  carry 
with  it  this  consequence,  that  a  trade  may  be  carried  on  in  a  particular 
locality,  the  consequence  of  which  trade  may  be  injury  and  destruction 
to  the  neighboring  property.  Of  course,  my  lords,  I  except  cases  where 
any  prescriptive  right  has  been  acquired  by  a  lengthened  user  of  the 
place. 

On  these  grounds,  therefore,  shortly,  without  dilating  further  upon 
them  (and  tliey  are  sufficiently  unfolded  by  the  judgment  of  the 
learned  judges  in  the  court  below),  I  advise  your  lordships  to  affirm 
the  decision  of  the  court  below,  and  to  refuse  the  new  trial,  and  to 
dismiss  the  appeal,  with  costs. 

Lord  Cranworth.  My  lords,  I  entirely  concur  in  opinion  with 
my  noble  and  learned  friend  on  the  woolsack,  and  also  in  the  opinion 
expressed  by  the  learned  judges,  that  this  has  been  considered  to  be 
the  proper  mode  of  directing  a  jury,  as  Mr.  Baron  Martin  said,  for  at 
least  twenty  years;  T  l)clieve  I  should  have  carried  it  back  rather 
further.  In  stating  what  I  always  understood  the  proper  question  to 
be,  I  cannot  do  better  than  adopt  the  language  of  Mr.  Justice  Mellor. 
He  says,  "  It  must  be  plain  that  persons  using  a  lime-kiln,  or  other 
works  which  emit  noxious  vapors,  may  not  do  an  actionable  injury  to 
anotlier,  and  that  any  place  where  such  an  operation  is  carried  on  so 
tbat  it  does  occasion  an  actionable  injury  to  another,  is  not,  in  the 
meaning  of  the  law,  a  convenient  place."  I  always  understood  that 
to  be  Ho;  but  in  truth,  as  was  observed  in  one  of  the  cases  by  the 
learned  jn(lg(!S,  it  is  extremely  (liflleult  to  lay  down  any  actual  defini- 
tion of  what  constitutes  an  injury;   because  it  is  always  a  question  of 


CHAP,   XVII.]  NUISANCE.  59l 

compound  facts,  which  must  be  looked  to,  to  see  whether  or  not  the 
mode  of  carrying  on  a  business  did  or  did  not  occasion  so  serious  an 
injury  as  to  interfere  with  the  comfort  of  life  and  enjoyment  of  prop- 
erty. 

I  perfectly  well  remember,  when  I  had  the  honor  of  being  one  of 
the  barons  of  the  Court  of  Exchequer,  trying  a  case  in  the  county  of 
Durham,  where  there  was  an  action  for  injury  arising  from  smoke  in 
the  town  of  Shields.  It  was  proved  incontestably  that  smoke  did  come 
and  in  some  degree  interfere  with  a  certain  person ;  but  I  said,  "  You 
must  look  at  it,  not  with  a  view  to  the  question  whether,  abstractly, 
that  quantity  of  smoke  was  a  nuisance,  but  whether  it  was  a  nuisance 
to  a  person  living  in  the  town  of  Shields ;  "  because,  if  it  only  added 
in  an  infinitesimal  degree  to  the  quantity  of  smoke,  I  held  tbat  tlie 
state  of  the  town  rendered  it  altogether  impossible  to  call  that  an 
actionable  nuisance. 

There  is  nothing  of  that  sort,  however,  in  the  present  case.  It 
seems  to  me  that  the  distinction,  in  matters  of  fact,  was  most  correctly 
pointed  out  by  Mr.  Justice  Mellor,  and  I  do  not  think  he  could  possibly 
have  stated  the  law,  either  abstractly  or  with  reference  to  the  facts, 
better  than  he  has  done  in  this  case. 

Lord  Wensleydale.  My  lords,  I  entirely  agree  in  opinion  with 
both  my  noble  and  learned  friends  in  this  case.  In  these  few  sentences 
I  think  everything  is  included.  The  defendants  say,  "  If  you  do  not 
mind,  you  will  stop  the  progress  of  works  of  this  description."  I 
agree  that  it  is  so ;  because,  no  doubt,  in  the  county  of  Lancaster,  ahove 
all  other  counties,  where  great  works  have  been  created  and  carried 
on,  and  are  the  means  of  developing  the  national  wealth,  you  must  not 
stand  on  extreme  rights,  and  allow  a  person  to  say,  "  I  will  bring 
an  action  against  3'ou  for  this  and  that,  and  so  on."  Business  could 
not  go  on  if  that  were  so.  Everything  must  be  looked  at  from  a 
reasonable  point  of  view;  therefore  the  law  does  not  regard  trifling 
and  small  inconveniences,  but  only  regards  sensible  inconveniences, 
injuries  which  sensibly  diminish  the  comfort,  enjoyment,  or  value 
of  the  property  which  is  affected. 

My  lords,  I  do  not  think  the  question  could  have  been  more  correctly 
laid  down  by  any  one  to  the  jury,  and  I  entirely  concur  in  the  pro- 
priety of  dismissing  this  appeal. 

Judgment  of  the  Exchequer  Chamber  affirming  the 
judgment  of  the  Court  of  Queen's  Bench  affirmed, 
and  appeal  dismissed,  with  costs. 


592  MAY    V.    BURDETT.  [CPIAP.    XVIII. 


CHAPTER   XVIII. 

DAMAGE    BY   ANIMALS. 

MAY  V.  BURDETT. 
Queen's  Bench  of  England,  Trinity  Term,  1846.     9  Q.  B.  101. 

Case.  The  declaration  stated  that  defendant,  "  before  and  at  the 
time  of  the  damage  and  injury  hereinafter  mentioned  to  the  said 
Sophia,  the  wife  of  the  said  Stephen  May,  wrongfully  and  injuriously 
kept  a  certain  monkey,  he  the  defendant  well  knowing  that  the  said 
monkey  was  of  a  mischievous  and  ferocious  nature,  and  was  used  and 
accustomed  to  attack  and  bite  mankind,  and  that  it  was  dangerous 
and  improper  to  allow  the  said  monkey  to  be  at  large  and  unconfined : 
which  said  monkey,  whilst  the  defendant  kept  the  same  as  aforesaid, 
heretofore  and  before  the  commencement  of  this  suit,  to  wit,  on  the 
2d  of  September,  1844,  did  attack,  bite,  wound,  lacerate,  and  injure 
the  said  Sophia,  then  and  still  being  the  wife  of  said  Stephen  May, 
whereby  the  said  Sophia  became  and  was  greatly  terrified  and  alarmed, 
and  became  and  was  sick,  sore,  lame  and  disordered,  and  so  remained 
and  continued  for  a  long  time,  to  wit,  from  the  day  and  year  last  afore- 
said, to  the  time  of  the  commencement  of  this  suit;  whereby,  and  in 
consequence  of  the  alarm  and  fright  occasioned  by  the  said  monkey, 
so  attacking,  biting,  wounding,  lacerating,  and  injuring  her  as  afore- 
said, the  said  Sophia  has  been  greatly  injured  in  her  health,"  &c. 

Plea,  not  guilty.    Issue  thereon. 

On  the  trial,  before  Wightman,  J.,  at  the  sittings  in  Middlesex, 
after  Hilary  Term,  1845,  a  verdict  was  found  for  the  plaintiff  with 
£50  damages.  Cockburn,  in  the  ensuing  term,  obtained  a  rule  to  show 
cause  why  judgment  should  not  be  arrested.  Cur.  adv.  vult. 

Lord  Denman,  C.  J.  This  was  a  motion  to  arrest  the  judgment 
in  an  action  on  the  case  for  keeping  a  monkey  which  the  defendant 
knew  to  be  accustomed  to  bite  people,  and  which  bit  tlie  female  plain- 
tiff. The  declaration  stated  that  the  defendant  wrongfully  kejit  a 
monkey,  well  knowing  that  it  was  of  a  mischievous  nature,  and  used 
and  accustomed  to  attack  and  bite  mankind,  and  that  it  was  dangerous 
to  allow  it  to  be  at  large;  and  that  the  monkey,  whilst  the  defendant 
kept  the  same  as  aforesaid,  did  attack,  bite,  and  injure  the  female 
plaintiff,  whereby,  &c. 

It  was  objected,  on  the  pari  of  tlic  dcfcndaTit,  that  tlio  declaration 
was  bad  for  not  an(';,nng  negligence  or  some  default  of  the  defendant 


CHAP.    XVIIl.]  DAMAGE   BY    ANIMALS.  593 

in  not  properly  or  securely  keeping  the  animal;  and  it  was  said  that, 
consistently  with  this  declaration,  the  monkey  might  have  been  kept 
with  due  and  proper  caution,  and  that  the  injury  might  have  been 
entirely  occasioned  by  the  carelessness  and  want  of  caution  of  the 
plaintiff  herself. 

A  great  man}^  cases  and  precedents  were  cited  upon  tlie  argument; 
and  the  conclusion  to  be  drawn  from  them  appears  to  us  to  be,  that 
the  declaration  is  good  upon  the  face  of  it;  and  that  whoever  keeps 
an  animal  accustomed  to  attack  and  bite  mankind,  with  knowledge 
that  it  is  so  accustomed,  is  prima  facie  liable  in  an  action  on  the  case 
at  the  suit  of  any  person  attacked  and  injured  by  the  animal,  without 
any  averment  of  negligence  or  default  in  the  securing  or  taking  care 
of  it.  The  gist  of  the  action  is  the  keeping  the  animal  after  knowledge 
of  its  mischievous  propensities. 

The  precedents,  both  ancient  and  modern,  with  scarcely  an  exception, 
merely  state  the  ferocity  of  the  animal  and  the  knowledge  of  the  de- 
fendant, without  any  allegation  of  negligence  or  want  of  care.  A  great 
many  were  referred  to  upon  the  argument,  commencing  with  the 
Eegister  and  ending  with  Thomas  v.  Morgan,  2  Cro.  M.  &  R.  496,  s.  c. 
5  Tyr.  1085,  and  all  in  the  same  form,  or  nearly  so.  In  the  Eegister, 
110,  111,  two  precedents  of  writs  are  given,  one  for  keeping  a  dog 
accustomed  to  bite  sheep,  and  the  other  for  keeping  a  boar  accustomed 
to  attack  and  wound  other  animals.  The  cause  of  action,  as  stated  in 
both  these  precedents,  is  the  propensity  of  the  animals,  the  knowledge 
of  the  defendant,  and  the  injury  to  the  plaintiff ;  but  there  is  no  allega- 
tion of  negligence  or  want  of  care.  In  the  case  of  Mason  v.  Keeling, 
12  Mod.  332,  s.  c.  1  Ld.  Eaym.  606,  much  relied  upon  on  the  part  of 
the  defendant,  want  of  due  care  was  alleged,  but  the  scienter  was 
omitted ;  and  the  question  was,  not  whether  the  declaration  would  be 
good  without  the  allegation  of  want  of  care,  but  whether  it  was  good 
without  the  allegation  of  knowledge,  which  it  Avas  held  that  it  was  not. 
No  case  was  cited  in  which  it  had  been  decided  that  a  declaration 
stating  the  ferocity  of  the  animal  and  the  knowledge  of  the  defendant 
was  bad  for  not  averring  negligence  also;  but  various  dicta  in  the 
books  were  cited  to  show  that  this  is  an  action  founded  on  negligence, 
and  therefore  not  maintainable  unless  some  negligence  or  want  of  care 
is  alleged. 

In  Comyns's  Digest,  tit.  Action  upon  the  Case  for  ISTegligence  (A  5), 
it  is  said  that  "  an  action  upon  the  case  lies  for  a  neglect  in  not  taking 
care  of  his  cattle,  dog,"  &c. ;  and  passages  were  cited  from  the  older 
authorities,  and  also  from  some  cases  at  nisi  prius,  in  which  expressions 
were  used  showing  that,  if  persons  suffered  animals  to  go  at  large, 
knowing  them  to  bo  disposed  to  do  mischief,  they  were  liable  in  case 
any  mischief  actually  was  done;  and  it  was  attempted  to  be  inferred 
from  this  that  the  liability  only  attached  in  case  they  were  suffered  to 
go  at  large  or  to  be  otherwise  ill  secured.     But  the  conclusion  to  be 


594  ELLIS    V.    LOFTUS    IRON    CO.  [CHAP.    XVIII, 

drawn  from  an  examination  of  all  the  authorities  appears  to  us  to  be 
this :  that  a  person  keeping  a  mischievous  animal,  with  knowledge  of 
its  propensities,  is  bound  to  keep  it  secure  at  his  peril,  and  that,  if  it 
does  mischief,  negligence  is  presumed  without  express  averment.  The 
precedents,  as  well  as  the  authorities,  fully  warrant  this  conclusion. 
The  negligence  is  in  keeping  such  an  animal  after  notice.  The  case 
of  Smith  V.  Pelah,  2  Stra.  1264,  and  a  passage  in  1  Hale's  Pleas  of 
the  Crown,  430,^  put  the  liability  on  the  true  ground.  It  may  be  that, 
if  the  injury  was  solely  occasioned  by  the  wilfulness  of  the  plaintiff 
after  warning,  that  may  be  a  ground  of  defence  by  plea  in  confession 
and  avoidance ;  but  it  is  unnecessary  to  give  any  opinion  as  to  this ;  for 
we  think  that  the  declaration  is  good  upon  the  face  of  it,  and  shows  a 
prima  facie  liability  in  the  defendant. 

It  was  said  indeed,  further,  on  the  part  of  the  defendant,  that,  the 
monkey  being  an  animal  ferae  naturae,  he  would  not  be  answerable  for 
injuries  committed  by  it,  if  it  escaped  and  went  at  large  without  any 
default  on  the  part  of  the  defendant,  during  the  time  it  had  so  escaped 
and  was  at  large,  because  at  that  time  it  would  not  be  in  his  keeping 
nor  under  his  control ;  but  we  cannot  allow  any  weight  to  this  objec- 
tion; for,  in  the  first  place,  there  is  no  statement  in  the  declaration 
that  the  monkey  had  escaped,  and  it  is  expressly  averred  that  the 
injury  occurred  while  the  defendant  kept  it.  We  are  besides  of  opinion, 
as  already  stated,  that  the  defendant,  if  he  would  keep  it,  was  bound 
to  keep  it  secure  at  all  events. 

The  rule  therefore  will  be  discharged. 

Rule  discharged. 


ELLIS  V.  LOFTUS  lEON  CO. 

Common  Pleas  of  England,  November,  1874.     L.  R.  10  C.  P.  10. 

Appeal  from  the  County  Court  of  Glamorganshire.  The  case  as 
stated  on  appeal  was  as  follows:  The  action  was  brought  to  recover 
£50  for  injuries  to  the  plaintiff's  mare  caused  by  the  defendants' 
negligence.  The  plaintiff  was  the  occupier  of  a  farm  in  the  parish 
of  Llansarran,  and  by  arrangements  between  the  plaintiff's  landlord, 

*  After  stntinK  that  "if  a  man  have  a  beast,  as  a  bull,  cow,  horse,  or  dog,  nsed 
to  hurt  people,  if  the  owner  Vcnew  not  his  quality,  he  is  not  punishable,"  &e.,  Ilnle 
aflfls   feltinc  authorities)    that   "these  things  seem  to  be  agreeable  to  law: 

"1.  If  the  owner  have  notice  of  the  ()uality  of  his  beast  and  it  doth  anybody 
hurt,  he  is  chargeable  with  an  action  for  it. 

"  2.  Though  he  have  no  particular  notice  that  he  did  any  such  thing  before,  yet 
If  it  be  a  beast  that  is  fer.-e  naturie,  as  a  lion,  a  bear,  a  wolf,  yes,  an  ape  or  mon- 
key, If  be  get  loose  and  do  harm  tf)  any  person,  the  owner  is  liable  to  an  action 
for  the  flnmiige,  and  so  I  know  it  adjudged  in  Andrew  Baker's  Case,  whose  child 
W!iH  bit  by   a  monkey   (bat  broke  his  cjiain   nnd  got   loose. 

"  .'{.  And  therefrire  in  case  ctf  such  a  wild  beast,  or  In  case  of  a  bull  or  cow  that 
doth  flamage,  where  the  owner  knows  of  it.  he  must  at  his  peril  keep  him  up  safe 
from  doing  hurt,  for  though  he  use  his  diligence  to  keep  him  tip,  if  he  escape  and 
do  harm,  the  owner  la  liable  to  answer  damage."     1  Hale's  I'.  C.  4.30,  part  1,  c.  33. 


CHAP.    XVIII.]  DAMAGE   BY   ANIMALS.  595 

tlie  plaintiff,  and  the  defendants,  a  portion  of  a  field  of  the  plaintiff's 
farm  was  let  to  the  defendants  for  the  execution  of  certain  works,  and 
a  plot  was  fenced  in  by  the  defendants  by  means  of  a  wire  fencing. 
The  plaintiff's  land,  which  adjoined  the  part  taken  by  defendants,  was 
used  by  him  as  grazing  land  for  horses  and  cattle,  to  the  knowledge 
of  the  defendants. 

The  defendants  were  possessed  of  a  stallion  used  by  them  as  a  draft 
cart-horse;  and  on  Sunday  the  18th  of  August,  this  horse  was  turned 
into  the  plot  occupied  by  the  defendants.  The  plaintiff  had  full 
knowledge  of  the  condition  of  the  fence  surrounding  it.  The  mare 
grazed  in  the  remaining  portion  of  the  field  adjoining  that  portion 
occupied  by  the  defendants.  The  defendants'  horse  had  been  turned 
out  on  former  occasions  on  the  same  plot  and  had  always  been  watched. 
The  horse  of  the  defendants  and  one  of  the  plaintiff's  mares  got  close 
together  on  either  side  of  the  wire  fence,  and  the  horse  by  biting  and 
kicking  the  mare  through  the  fence  committed  the  injury  complained 
of,  the  damage  being  taken  at  £15. 

It  was  proved  that  the  defendants'  horse  did  not  trespass  on  the  land 
of  the  plaintiff  by  crossing  the  fence.  Both  animals  were  close  to  the 
fence  when  the  injury  happened.  There  was  no  evidence  that  the 
horse  was  of  a  vicious  temper  or  had  bitten  or  kicked  any  animal  be- 
fore ;  on  the  contrary  it  was  stated  that  the  horse  was  as  quiet  in 
temper  as  you  would  ever  wish  a  horse.  The  plaintiff  had  warned 
the  defendants  to  keep  the  horse  away  from  his  mares. 

The  judge  being  of  opinion  that  there  was  no  trespass,  and  that 
the  damage  was  too  remote,  held  that  there  w^as  no  case  for  the  jury. 
The  question  for  this  court  was,  whether  the  plaintiff  was  entitled  to 
recover  from  the  defendants  for  the  injuries  caused  as  aforesaid. 

Lord  Coleridge,  C.  J.  The  judgment  of  the  County  Court  judge 
must,  I  think,  be  reversed,  on  the  ground  that  there  was  evidence  of 
a  trespass,  and  the  damages  were  not  too  remote.  I  cannot  say  I 
entertain  any  doubt  in  the  matter.  It  is  clear  that  in  determining 
the  question  of  trespass  or  no  trespass,  the  court  cannot  measure  the 
amount  of  the  alleged  trespass;  if  the  defendant  place  a  part  of  his 
foot  on  the  plaintiff's  land  unlawfully,  it  is  in  law  as  much  a  trespass 
as  if  he  had  walked  half  a  mile  on  it.  It  has  moreover  been  held, 
again  and  again,  that  there  is  a  duty  on  a  man  to  keep  his  cattle  in, 
and  if  they  get  on  another's  land  it  is  a  trespass;  and  that  is  irre- 
spective of  any  question  of  negligence  whether  great  or  small.  In 
this  case  it  is  found  that  there  was  an  iron  fence  on  the  plaintiff's 
land,  and  that  the  horse  of  the  defendants  did  damage  to  that  of  the 
plaintiff  through  the  fence.  It  seems  to  me  sufficiently  clear  that 
some  portion  of  the  defendants'  horse's  body  must  have  been  over  the 
boundary.  That  may  be  a  very  small  trespass,  but  it  is  a  trespass  in 
law. 

The  only  remaining  question  is,  whether  the  damages  were  too 


596  ELLIS    V.    LOFTUS    IRON    CO.  [CHAP,    XVIII. 

remote.  I  cannot  see  that  they  were;  they  were  the  natural  and 
direct  consequence  of  the  trespass  committed.  These  considerations 
would  dispose  of  the  case,  but  apart  from  any  technicalities  of  law  it 
seems  to  me  that  the  merits  are  in  the  plaintiff's  favor.  It  appears 
that  a  piece  of  land  was  railed  off  for  the  defendants'  convenience, 
and  the  plaintiff  being  in  the  habit  of  keeping  mares  on  the  adjoining 
land  previous  to  the  accident  the  defendants'  stallion  had  always  been 
watched.  Therefore  without  saying  that  there  was  any  gross  negli- 
gence or  carelessness  on  defendants'  part,  I  think  there  was  some  de- 
fault on  their  part,  without  which  the  accident  would  not  have  hap- 
pened. It  is  not  necessary  for  me  to  discuss  the  authorities  that  have 
been  cited  at  length.  I  will  only  say  that  Lee  v.  Eiley,  18  C.  B.  n.  s. 
722 ;  34  L.  J.  C.  P.  212,  is  a  very  strong  authority  for  our  present 
decision.  For  these  reasons  I  am  of  opinion  that  our  judgment  should 
be  for  the  plaintiff. 

Keating,  J.  I  am  of  the  same  opinion.  The  County  Court  judge 
appears  to  have  held  that  the  facts  as  stated  did  not  amount  to  evi- 
dence of  an  actionable  wrong  on  the  part  of  the  defendants.  There 
seems  to  me,  however,  to  be  abundant  evidence  that  the  defendants' 
horse  committed  a  trespass  for  which  the  defendants  are  liable. 

The  horse,  it  is  found,  kicked  and  bit  the  mare  through  the  fence. 
I  take  it  that  the  meaning  of  that  must  be  that  the  horse's  mouth  and 
feet  protruded  through  the  fence  over  the  plaintiff's  land,  and  that 
would  in  my  opinion  amount  in  law  to  a  trespass.  If  evidence  of 
negligence  was  necessary  to  constitute  a  trespass  in  this  case,  in  my 
opinion  there  is  abundant  evidence  of  negligence  on  the  defendants' 
part,  and  none  on  that  of  the  plaintiff.  The  defendants  erected  the 
fence  and  turned  the  horse  into  the  field  for  their  own  convenience; 
they  had  ample  warning  with  respect  to  the  danger,  and  in  conse- 
quence of  such  warning  they  had  the  horse  watched  on  previous  occa- 
sions, but  failed  to  do  so  on  the  occasion  when  the  damage  was  caused. 

Brett,  J.  I  must  confess  I  did  entertain  some  doubt  on  this  mat- 
ter. The  questions  are  whether  there  was  any  evidence  of  a  trespass 
on  the  plaintiff's  land  for  which  the  defendants  would  be  liable,  and 
if  there  was  then  whether  the  damage  is  too  remote.  I  had  no  doubt 
that  if  there  was  evidence  of  negligence,  and  as  a  result  of  such  negli- 
gence an  animal  of  the  defendants  passed  wholly  or  in  part  on  to  the 
plaintiff's  land  such  a  circumstance  would  constitute  a  trespass; 
but  what  T  did  doubt  for  some  time  was  whether,  where  there  was 
no  negligence  at  all  on  the  part  of  the  defendants,  the  same  conse- 
quence would  follow. 

Having  looked  into  the  authorities,  it  appears  to  me  that  the  result 
of  them  is  that,  in  the  case  of  animals  trespassing  on  land,  the  mere 
act  of  Iho  animal  belonging  to  a  man,  which  he  could  not  foresee,  or 
which  he  took  all  reasonable  means  of  preventing,  may  be  a  trespass, 
inasmuch  as  the  same  act,  if  done  by  himself,  would  have  been  a  tres- 


CHAP.    XVIII.]  DAMAGE  BY  ANIMALS.  597 

pass.  Blackstone,  16th  ed.  vol.  iii.  c.  12,  p.  211;  Chitty,  Pleading, 
7th  ed.  vol.  i.  p.  98;  and  Comyns'  Digest,  title  Trespass,  C,  are  all 
authorities  to  this  effect.  If,  however,  it  were  necessary  that  there 
should  be  evidence  of  negligence,  I  cannot  say  that  I  should  go  the 
length  that  my  brother  Keating  did,  in  saying  that  there  was  abun- 
dant evidence  of  negligence,  though  I  think  there  was  some  evidence. 
That  would  be  sufficient  to  support  our  judgment  in  any  view  of  the 
law;  but  I  put  my  judgment  on  the  ground  that  by  law  there  was 
a  trespass  in  this  case  without  evidence  of  negligence.  That  being 
so,  the  question  remains  whether  the  damages  were  too  remote.  The 
case  of  Lee  v.  Eiley  is  a  distinct  authority  to  the  contrary;  and  the 
American  case  of  Vandenburgh  v.  Truax,  4  Denio,  464,  quoted  in 
the  notes  to  Vicars  v.  Wilcocks,  2  Smith's  L.  C.  p.  499,  6th  ed.,  is  to 
the  same  effect. 

Denman,  J.  I  rather  agree  with  my  brother  Brett  as  to  the 
amount  of  evidence  of  negligence  in  this  case.  I  am  by  no  means 
clear  that  there  was  such  evidence  of  negligence  as,  if  it  was  necessary 
to  prove  negligence,  would  have  properly  entitled  the  plaintiff  to  a 
verdict.  The  County  Court  judge  appears  to  have  nonsuited  the  plain- 
tiff on  the  ground  that  there  was  no  trespass,  and  the  damages  were  too 
remote.  Now  during  the  early  part  of  the  argument  I  thought  it  a 
very  strong  thing  to  say  that  whenever  any  part  of  an  animal  passed 
over  or  through  a  fence,  inasmuch  as  the  same  act,  if  done  by  a  man, 
might  technically  be  a  trespass,  therefore  there  was  a  trespass  on  the 
part  of  the  owner  of  the  animal.  But  after  hearing  the  authorities 
cited,  and  especially  the  case  of  Lee  v.  Eiley,  and  the  passages  from 
Comyns'  Digest  and  Chitty  on  Pleading,  it  appears  to  me  that  they 
undoubtedly  bear  out  that  view. 

It  seems  hard,  when  two  parties  have  adjoining  lands  with  a  fence 
between  them,  and  a  quarrel  arises  between  the  animals  on  either 
side  of  the  fence,  one  party  should  be  liable  for  the  consequences, 
though  not  in  reality  guilty  of  default  or  neglect  any  more  than  the 
other,  by  reason  of  the  application  to  the  mere  act  of  an  animal  of 
the  technical  rule  "  cujus  est  solum  ejus  est  usque  ad  cgelum."  I 
must  say,  however,  that  I  cannot  see,  upon  the  authorities,  any  escape 
from  the  conclusion  that  it  must  be  so. 

The  only  remaining  point  is  whether  the  damages  were  too  remote. 
As  to  that  I  agree  with  the  rest  of  the  court  that  the  case  of  Lee  r. 
Riley  is  conclusive. 

Judgment  for  the  plaintiff. 

Note:  Compare  Millen  v.  Faudrye,  Poph.  161 ;  Glenham  v.  Hanby, 
1  Ld.  Eaym.  739;  ]\Iason  v.  Keeling,  id.  608,  dictum  attributed  to 
Lord  Holt ;  and  note  to  the  original  report  of  the  principal  case. 


598  DECKER    V.    GAMMON.  [CHAP.    XVIII. 

DECKEE  V.  GAMMON. 

Supreme  Court  of  Maine,  1857.     44  Maine,  322. 

This  is  an  action  on  the  case,  to  recover  the  value  of  a  horse, 
alleged  to  have  been  injured  ))y  the  defendant's  horse,  and  comes  for- 
ward on  exceptions  to  the  rulings  of  Goodenow,  J. 

The  plaintiff  introduced  evidence  tending  to  prove  that  at  niglit, 
on  the  13th  of  September,  1855,  he  put  his  horse  into  his  field  well 
and  uninjured.  The  next  morning,  September  14th,  his  horse  and 
the  defendant's  were  together  in  his,  the  plaintiff's  close,  the  defend- 
ant's horse  having,  during  the  night,  escaped  from  the  defendant's 
enclosure,  or  from  the  highway,  into  the  close  of  the  plaintiff,  and 
that  the  plaintiff's  horse  was  severely  injured  by  the  defendant's 
horse,  by  kicking,  biting,  or  striking  with  his  fore  feet,  or  in  some 
other  way,  so  that  he  died  in  a  few  days  after. 

The  defendant  requested  the  presiding  judge  to  instruct  the  jury 
that  to  entitle  the  plaintiff  to  recover  against  the  defendant  he  must 
prove,  in  addition  to  other  necessary  facts,  that  the  defendant's  horse 
was  vicious,  and  that  the  defendant  had  knowledge  of  such  vicious- 
ness  prior  to  the  time  of  the  alleged  injury. 

The  presiding  judge  declined  giving  these  instructions,  and  directed 
the  jury,  that,  if  they  should  find  that  the  defendant  owned  the 
horse  alleged  to  have  done  the  injury  to  the  plaintiff's  horse,  and  if, 
at  the  time  of  the  injury,  he  had  escaped  into  the  plaintiff's  close, 
and  was  wrongfully  there,  and  while  there  occasioned  the  injury, 
and  that  the  horse  died  in  consequence,  that  the  plaintiff  would 
be  entitled  to  recover  the  value  of  the  horse  so  injured.  That 
it  was  not  necessary  for  the  plaintiff  to  prove  that  the  horse  was 
vicious,  or  accustomed  to  acts  of  violence  towards  other  animals  or 
horses,  or  that  the  owner  had  notice  of  such  viciousness  or  habits. 

The  jury  returned  a  verdict  for  the  plaintiff. 

Davis,  J.  There  are  three  classes  of  cases  in  which  the  owners  of 
n.nimals  are  liable  for  injuries  done  by  them  to  the  persons  or  the 
property  of  others.  And  in  suits  for  such  injuries  the  allegations  and 
iM-oofs  must  be  varied  in  each  case,  as  the  facts  bring  it  within  one 
or  another  of  these  classes. 

1.  The  owner  of  wild  beasts,  or  beasts  that  are  in  their  nature 
vicious,  is,  under  all  circumstances,  liable  for  injuries  done  by  them. 
It  is  not  necessary,  in  actions  for  injuries  by  such  beasts,  to  allege 
or  prove  that  the  owner  knew  them  to  be  mischievous,  for  he  is 
conclusively  presumed  to  have  such  knowledge;  or  that  he  was  guilty 
of  negligence  in  permitting  them  to  be  at  large,  for  he  is  bound  to 
keep  tlifin  in  at  his  peril. 

"  Thougli    the  owner   have  no  particular  notice  that  he   did   any 


CHAP.    XVIII.]  DAMAGE   BY    ANIMALS.  599 

such  thing  before,  yet  if  he  be  a  beast  that  is  ferae  naturae,  if  he  get 
loose  and  do  harm  to  any  person,  the  owner  is  liable  to  an  action  for 
the  damage."    1  Hale,  P.  C,  430. 

"  If  they  are  such  as  are  naturally  mischievous  in  their  kind,  in 
which  the  owner  has  no  valuable  property,  he  shall  answer  for  hurt 
done  by  them,  without  any  notice;  but  if  they  are  of  a  tame  nature, 
there  must  be  notice  of  the  ill  quality."  Holt,  C.  J.  Mason  v.  Keel- 
ing, 12  Mod.  E.  332. 

"  The  owner  of  beasts  that  arc  fera  naturae  must  always  keep 
them  up,  at  his  peril;  and  an  action  lies  without  notice  of  the  quality 
of  the  beasts."    Eex  v.  Huggins,  2  Lord  Raym.,  1583. 

2.  If  domestic  animals,  such  as  oxen  and  horses,  injure  any  one, 
in  person  or  property,  if  they  are  rightfully  in  the  place  where  they 
do  the  mischief,  the  owner  of  such  animals  is  not  liable  for  such  in- 
jury, unless  he  knew  that  they  were  accustomed  to  do  mischief.  And 
in  suits  for  such  injuries,  such  knowledge  must  be  alleged,  and 
proved.  For  unless  the  owner  knew  that  the  beast  was  vicious,  he 
is  not  liable.    If  the  owner  had  such  knowledge  he  is  liable. 

"  The  gist  of  the  action  is  the  keeping  of  the  animal  after  knowl- 
edge of  its  vicious  propensities."  May  v.  Burdett,^  58  Eng.  C.  L., 
101. 

"  If  the  owner  have  knowledge  of  the  quality  of  his  beast,  and  it 
doth  anybody  hurt,  he  is  chargeable  in  an  action  for  it."  1  Hale 
P.  C,  430. 

"  An  action  lies  not  unless  the  owner  knows  of  this  quality." 
Buxendin  v.  Sharp,  2  Salk.  662. 

"  If  the  owner  puts  a  horse  or  an  ox  to  grass  in  his  field,  and  the 
horse  or  ox  breaks  the  hedge,  and  runs  into  the  highway,  and  gores 
or  kicks  some  passenger,  an  action  will  not  lie  against  the  owner 
unless  he  had  notice  that  they  had  done  such  a  thing  before."  Mason 
V.  Keeling,  12  Modern  R.  332. 

"  If  damage  be  done  by  any  domestic  animal,  kept  for  use  or  con- 
venience, the  owner  is  not  liable  to  an  action  on  the  ground  of  negli- 
gence, without  proof  that  he  knew  that  the  animal  was  accustomed 
to  do  mischief."    Vrooman  v.  Lawyer,  13  Johns.  R.  339. 

3.  The  owner  of  domestic  animals,  if  they  are  wrongfully  in 
the  place  where  they  do  any  mischief,  is  liable  for  it,  though  he  had 
no  notice  that  they  had  been  accustomed  to  do  so  before.  In  cases 
of  this  kind  the  ground  of  the  action  is,  that  the  animals  were 
wrongfully  in  the  place  where  the  injury  was  done.  And  it  is  not 
necessary  to  allege  or  prove  any  knowledge  on  the  part  of  the  owner, 
that  they  had  previously  been  vicious. 

"  If  a  bull  break  into  an  enclosure  of  a  neighbor,  and  there  gore 
a  horse  so  that  he  die,  his  owner  is  liable  in  an  action  of  trespass 
quare  clausum  fregit,  in  which  the  value  of  the  horse  would  be  the 

1  Ante.  p.  592. 


600  DECKER   V.    GAMMON.  [CIIAP.    XVIII, 

just  measure  of  damages."  DoIidIi  v.  Ferris,  7  Watts  &  Searg.  E. 
367. 

"  If  the  owner  of  a  horse  suffers  it  to  go  at  large  in  the  streets 
of  a  populous  city,  he  is  answerable  in  an  action  on  the  case,  for  a  per- 
sonal injury  done  by  it  to  an  individual,  without  proof  that  he 
knew  that  the  horse  was  vicious.  The  owner  had  no  right  to  turn 
the  horse  loose  in  the  streets."  Goodman  v.  Gay,  3  Harris  R.  188. 
In  this  case  the  writ  contained  the  allegation  of  knowledge  on  the 
part  of  the  defendant;  but  the  court  held  that  it  was  not  material, 
and  need  not  be  proved. 

The  case  before  us  is  clearly  within  this  class  of  cases  last  de- 
scribed. It  is  alleged  in  the  writ  that  "  the  plaintiff  had  a  valuable 
horse  which  was  peaceably  and  of  right  depasturing  in  his  own  close, 
and  the  defendant  was  possessed  of  another  horse,  vicious  and  un- 
ruly, which  was  running  at  large  where  of  right  he  ought  not  to 
be;  and  being  so  unlawfully  at  large,  broke  into  the  plaintiff's  close, 
and  injured  the  plaintiff's  horse,  &c."  It  is  also  alleged  that  "the 
vicious  habits  of  the  horse  were  well  known  to  the  defendant ; "  but 
this  allegation  was  not  necessary,  and  may  well  be  treated  as  sur- 
plusage. If  the  defendant  had  had  a  right  to  turn  his  horse  upon  the 
plaintiff's  close,  it  would  have  been  otherwise.  But  if  the  horse  was 
wrongfully  there,  the  defendant  was  liable  for  any  injury  done  by 
him,  though  he  had  no  knowledge  that  the  horse  was  vicious.  The 
gravamen  of  the  charge  was,  that  the  horse  was  wrongfully  upon  the 
plaintiff's  close;  and  this  was  what  was  put  in  issue  by  the  plea  of 
not  guilty. 

Nor  are  these  principles  in  conflict  with  the  decision  in  the  case 
of  Van  Lenven  v.  Lyke,  1  Comstock,  515.  In  that  case  the  action 
was  not  sustained,  because  the  declaration  was  not  for  trespass  quare 
clausum,  with  the  other  injuries  alleged  by  way  of  aggravation.  But 
in  that  case  there  was  no  allegation  that  the  animal  was  wrongfully 
upon  the  plaintiff's  close ;  or  that  the  injury  was  committed  upon  the 
plaintiff's  close.  4  Denio  E.  127.  And  in  the  Court  of  Appeals  it 
was  expressly  held,  that  "  if  the  plaintiff  had  stated  in  his  declaration 
that  the  swine  broke  and  entered  his  close,  and  there  committed  the 
injury  complained  of,  and  sustained  his  declaration  by  evidence,  he 
would  have  been  entitled  to  recover  all  the  damages  thus  sustained." 
1  Coms.  515,  518. 

In  the  case  before  us,  though  the  declaration  is  not  technically  for 
trespass  quare  clausum,  it  is  distinctly  alleged  that  the  defendant's 
horse,  "  being  so  unlawfully  at  large,  broke  and  entered  the  plain- 
tiff's close,  and  injured  the  plaintiff's  horse,"  which  was  there  peace- 
ably and  of  right  depasturing.  This  was  sufficient;  and  the  instruc- 
tion given  to  the  jury,  "that  if  the  defendant's  horse,  at  the  time 
of  the  injury,  had  escaped  into  the  close,  and  was  wrongfully  there, 
and   wbilc  there  occasioned  the   injury,  then  the  plaintiff  would  be 


CHAP.    XVIII.]  DAMAGE   BY    ANIMALS.  60^ 

entitled  to  recover/'  was  correct.  And  this  being  so,  the  instruction 
requested,  "  that  the  plaintiff  must  prove,  in  addition  to  other  neces- 
feary  facts,  that  the  defendant's  horse  was  vicious,  and  that  the  defend- 
ant had  knowledge  of  such  viciousncss  prior  to  the  time  of  the  injury," 
was  properly  refused. 

Exceptions  overruled. 

Cutting,  J.,  did  not  concur. 


602  RYLANDS    V.    FLETCHER.  [CHAP.    XIX. 


CHAPTER  XIX. 

ESCAPE  OF  DANGEROUS  THINGS. 

RYLANDS  V.  FLETCHER. 

House  of  Lords  of  England,  July,  1868.     L.  R.  3  H.  L.  330. 

This  was  a  proceeding  in  error  against  a  judgment  of  the  Ex- 
chequer Chamber,  which  had  reversed  a  previous  judgment  of  the 
Court  of  Exchequer. 

In  November,  1861,  Fletcher  brought  an  action  against  Rylands 
&  Horrocks  to  recover  damages  for  an  injury  caused  to  his  mines  by 
water  overflowing  into  them  from  a  reservoir  which  the  defendants 
had  constructed.  The  declaration  contained  three  counts,  each  count 
alleging  negligence  on  the  part  of  the  defendants,  but  in  this  House 
the  case  was  ultimately  treated  upon  the  principle  of  determining  the 
relative  rights  of  the  parties  independently  of  any  question  of  per- 
sonal negligence  by  the  defendants  in  the  exercise  of  them. 

The  cause  came  on  for  trial  at  the  Liverpool  Summer  Assizes  of 
1862,  when  it  was  referred  to  an  arbitrator,  who  was  afterwards  di- 
rected, instead  of  making  an  award,  to  prepare  a  special  case  for  the 
consideration  of  the  judges.  This  was  done,  and  the  case  was  argued 
in  the  Court  of  Exchequer  in  Trinity  Term,  1865. 

The  material  facts  of  the  case  were  these:  The  plaintiff  was  the 
lessee  of  certain  coal  mines  known  as  the  Red  House  Colliery,  under 
the  Earl  of  Wilton.  He  had  also  obtained  from  two  other  persons, 
Mr.  Hulton  and  Mr.  Whitehead,  leave  to  work  for  coal  under  their 
lands.  The  positions  of  the  various  properties  were  these:  There 
was  a  turnpike  road  leading  from  Bury  to  Bolton,  which  formed  a 
southern  boundary  to  the  properties  of  these  different  persons.  A 
parish  road,  called  the  Old  Wood  Lane,  formed  their  northern  bound- 
ary. These  roads  might  be  described  as  forming  two  sides  of  a 
square,  of  which  the  other  two  sides  were  formed  by  the  lands  of  Mr. 
Whitehead  on  the  cast  and  Lord  Wilton  on  the  west.  The  defend- 
ants' grounds  lay  along  the  turnpike  road,  or  southern  boundary, 
stretching  from  its  centre  westward.  On  these  grounds  were  a  mill 
and  a  small  old  reservoir.  The  proper  grounds  of  the  Red  House 
Colliery  also  lay  in  part  along  the  southern  boundary,  stretching  from 
its  centre  eastward.  Immediately  north  of  the  defendants'  land  lay 
the  land  of  Mr.  ITulton,  and  still  further  north  that  of  Lord  Wilton. 
On  this  land  f)f  Lord  Wilton  the  defendants  in  1860  constructed  (with 


CHAP.    XIX.]  ESCAPE  OF  DANGEROUS  THINGS.  _60h 

his  lordship's  permission)  a  new  reservoir,  the  water  from  which 
would  pass  almost  in  a  southerly  direction  across  a  part  of  the  land 
of  Lord  Wilton  and  the  land  of  Mr.  Ilulton,  and  so  reach  the  de- 
fendants' mill.  The  line  of  direction  from  this  new  reservoir  to  the 
Eed  House  Colliery  mine  was  nearly  southeast. 

The  plaintiff,  under  his  lease  from  Lord  Wilton,  and  under  his 
agreements  with  Messrs.  Hulton  and  Whitehead,  worked  the  mines 
under  their  respective  lands.  In  the  course  of  doing  so  he  came  upon 
old  shafts  and  passages  of  mines  formerly  worked  but  of  which  the 
workings  had  long  ceased.  The  origin  and  the  existence  of  these 
shafts  and  passages  were  unknown.  The  shafts  were  vertical,  the 
passages  horizontal;  and  the  former  especially  seemed  filled  with 
marl  and  rubbish.  Defendants  employed  for  the  purpose  of  con- 
structing their  new  reservoir  persons  who  were  admitted  to  be  com- 
petent as  engineers  and  contractors  to  perform  the  work,  and  there 
was  no  charge  of  negligence  made  against  the  defendants  personally. 
But  in  the  course  of  excavating  the  bed  of  the  new  reservoir  five  old 
shafts,  running  vertically  downwards,  were  met  with  in  the  portion 
of  the  land  selected  for  its  site.  The  case  found  that  "  on  the  part 
of  the  defendants  there  Avas  no  personal  negligence  or  default  what- 
ever, in  or  about,  or  in  relation  to,  the  selection  of  the  said  site,  or  in 
or  about  the  planning  or  construction  of  the  said  reservoir;  but 
in  point  of  fact  reasonable  and  proper  care  and  skill  were  not  exer- 
cised by  or  on  the  part  of  the  persons  so  employed  by  them  with 
reference  to  the  shafts  so  met  with  as  aforesaid,  to  provide  for  the 
sufficiency  of  the  said  reservoir  to  bear  the  pressure  of  water  which, 
when  filled  to  the  height  proposed,  it  would  have  to  bear." 

The  reservoir  was  completed  at  the  beginning  of  December,  1860, 
and  on  the  morning  of  the  11th  of  that  month,  being  then  partially 
filled  with  water,  one  of  the  aforesaid  vertical  shafts  gave  way,  and 
burst  downwards,  in  consequence  of  which  the  water  of  the  reser- 
voir flowed  into  the  old  passages  and  coal-workings  underneath,  and 
by  means  of  the  underground  communications  then  existing  between 
them  and  the  plaintiff's  workings  in  the  Eed  House  Colliery  the 
colliery  was  flooded  and  the  workings  thereof  stopped. 

The  question  for  the  opinion  of  the  court  was  whether  the  plain- 
tifi'  was  entitled  to  recover  damages  by  reason  of  the  matters  herein- 
before stated.  The  Court  of  Exchequer,  Mr.  Baron  Bramwell  dissent- 
ing, gave  judgment  for  the  defendants.  3  H.  &  C.  774.  That  judg- 
ment was  afterwards  reversed  in  the  Court  of  Exchequer  Chamber, 
4  H.  &  C.  2C3 ;  L.  E.  1  Ex.  265.  The  case  was  then  brought  on  error 
to  this  House. 

The  Lord  Chancellor  (Lord  Cairns).  My  lords,  in  this  case 
the  plaintiff  (I  may  use  the  description  of  the  parties  in  the  action) 
is  the  occupier  of  a  mine  and  works  "under  a  close  of  land.  The  de- 
fendants are  the  owners  of  a  mill  in  his  neighborhood,  and  they  pro- 


604  RYLANDS    V.    FLETCHER.  [CIIAP.    XIX. 

posed  to  make  a  reservoir  for  the  purpose  of  keeping  and  storing 
water  to  be  used  about  their  mill  upon  another  close  of  land  which, 
for  the  purposes  of  tbis  case,  may  be  taken  as  being  adjoining  to 
the  close  of  the  plaintiff,  although  in  point  of  fact  some  intervening 
land  lay  between  the  two.  Underneath  the  close  of  land  of  the  de- 
fendants, on  which  they  proposed  to  construct  their  reservoir,  there 
were  certain  old  and  disused  mining  passages  and  works.  There  were 
five  vertical  shafts,  and  some  horizontal  shafts  communicating  with 
them.  The  vertical  shafts  had  been  filled  up  with  soil  and  rubbish ; 
and  it  does  not  appear  that  any  person  was  aware  of  the  existence 
either  of  the  vertical  shafts  or  of  the  horizontal  works  communicat- 
ing with  them.  In  the  course  of  the  working  by  the  plaintiff  of  his 
mine  he  had  gradually  worked  through  the  seams  of  coal  underneath 
the  close,  and  had  come  into  contact  with  the  old  and  disused  works 
underneath  the  close  of  the  defendants. 

In  that  state  of  things  the  reservoir  of  the  defendants  was  con- 
structed. It  was  constructed  by  them  through  the  agency  and  in- 
spection of  an  engineer  and  contractor.  Personally  the  defendants 
appear  to  have  taken  no  part  in  the  works  or  to  have  been  aware  of 
any  want  of  security  connected  with  them.  As  regards  the  engineer 
and  the  contractor,  we  must  take  it  from  the  case  that  they  did  not 
exercise,  as  far  as  they  were  concerned,  reasonable  care  and  caution 
which  they  might  have  exercised,  taking  notice,  as  they  appear  to  have 
taken  notice,  of  the  vertical  shafts  filled  up  in  the  manner  which  I 
have  mentioned.^  However,  my  lords,  when  the  reservoir  was  con- 
structed, and  filled  or  partly  filled  with  water,  the  weight  of  the 
water  bearing  upon  the  disused  and  imperfectly  filled-up  vertical 
shafts,  broke  through  those  shafts.  The  water  passed  down  them  and 
into  the  horizontal  workings,  and  from  the  horizontal  workings  under 
the  close  of  the  defendants  it  passed  on  into  the  workings  under  the 
close  of  the  plaintiff  and  flooded  his  mine,  causing  considerable  dam- 
age, for  which  this  action  was  brought. 

The  Court  of  Exchequer,  when  the  special  case  stating  the  facts 
to  which  I  have  referred  was  argued,  was  of  opinion  that  the  plain- 
tiff had  established  no  cause  of  action.  The  Court  of  Exchequer 
Chamber,  before  which  an  appeal  from  this  judgment  was  argued,  was 
of  a  contrary  opinion,  and  the  judges  there  unanimously  arrived  at 
the  conclusion  that  there  was  a  cause  of  action,  and  tliat  the  plaintiff 
was  entitled  to  damages. 

My  lords,  the  principles  on  which  this  case  must  be  determined 
appear  to  me  to  be  extremely  simple.  The  defendants,  treating  them 
as  owners  or  occupiers  of  the  close  on  which  tlie  reservoir  was  con- 
structed, might  lawfully  have  used  that  close  for  any  purpose  for 
which  it  might  in  the  ordinary  course  of  the  enjoyment  of  land  be 

'Ah  to  tho  rolnflfin  of  thn  cnntrnntor  nnrt  the  enRlnoor  to  ttip  plaintifT  see 
Hllllnrfl  V.  IMclKirflHon.  3  Gray.  349.     See  also  Boomer  v.  Wilbur,  ante,  p.  103. 


CHAP.    XIX.]  ESCAPE  OF  DANGEROUS  THINGS.  605 

used;  and  if  in  what  I  may  term  the  natural  user  of  that  land  there 
had  been  any  aceumulation  of  water,  either  on  the  surface  or  under- 
ground, and  if  by  tlic  oj)eration  of  tlie  laws  of  nature  tliat  accumuhi- 
tion  of  water  had  passed  off  into  the  close  occupied  by  the  plaintiff, 
the  plaintiff  could  not  have  complained  that  that  result  had  taken 
place.  If  he  had  desired  to  guard  himself  against  it,  it  would  have 
lain  upon  him  to  have  done  so  by  leaving  or  by  interposing  some 
barrier  between  his  close  and  the  close  of  the  defendants  in  order  to 
have  prevented  that  operation  of  the  laws  of  nature.  As  an  illustra- 
tion of  that  principle  I  may  refer  to  a  case  which  was  cited  in  the 
argument  before  your  lordships,  the  case  of  Smith  v.  Kenrick,  7  C.  B. 
515,  in  the  Court  of  Common  Pleas. 

On  the  other  hand  if  the  defendants,  not  stopping  at  the  natural 
use  of  their  close,  had  desired  to  use  it  for  any  purpose  which  I  may 
term  a  non-natural  use,  for  the  purpose  of  introducing  into  the  close 
that  which  in  its  natural  condition  was  not  in  or  upon  it,  for  the 
purpose  of  introducing  water  either  above  or  below  ground  in  quan- 
tities and  in  a  manner  not  the  result  of  any  work  or  operation  on  or 
under  the  land,  —  and  if  in  consequence  of  their  doing  so,  or  in 
consequence  of  any  imperfection  in  the  mode  of  their  doing  so,  the 
water  came  to  escape  and  to  pass  off  into  the  close  of  the  plaintiff, 
then  it  appears  to  me  that  that  which  the  defendants  were  doing  they 
were  doing  at  their  own  peril;  and  if  in  the  course  of  their  doing  it 
the  evil  to  which  I  have  referred,  the  evil  namely  of  the  escape  of 
the  water  and  its  passing  away  to  the  close  of  the  plaintiff  and  in- 
juring the  plaintiff,  then  for  the  consequences  of  that,  in  my  opinion, 
the  defendants  would  be  liable.  As  the  case  of  Smith  v.  Kenrick  is 
an  illustration  of  the  first  principle  to  which  I  have  referred,  so 
also  the  second  principle  to  which  I  have  referred  is  well  illustrated 
by  another  case  in  the  same  court,  the  case  of  Baird  v.  Williamson, 
15  C.  B.  N,  s.  317,  which  was  also  cited  in  the  argument  at  the  bar. 

My  lords,  these  simple  principles,  if  they  are  well  founded,  as  it 
appears  to  me  they  are,  really  dispose  of  this  case. 

The  same  result  is  arrived  at  on  the  principles  referred  to  by  Mr. 
Justice  Blackburn  in  his  judgment  in  the  Court  of  Exchequer  Cham- 
ber, where  he  states  the  opinion  of  that  court  as  to  the  law  in  these 
words :  "  We  think  that  the  true  rule  of  law  is  that  the  person  who, 
for  his  own  purposes,  brings  on  his  land  and  collects  and  keeps  there 
anything  likely  to  do  mischief  if  it  escapes,  must  keep  it  in  at  his 
peril;  and  if  he  does  not  do  so,  is  prima  facie  answerable  for  all 
the  damage  which  is  the  natural  consequence  of  its  escape.  He  can 
excuse  himself  by  showing  that  the  escape  was  owing  to  the  plaintiff's 
default;  or  perhaps  that  the  escape  was  the  consequence  of  vis  major, 
or  the  act  of  God;  but  as  nothing  of  this  sort  exists  here,  it  is  un- 
necessary to  inquire  what  excuse  would  be  sufficient.  The  general 
rule,  as  above  stated,  seems  on  principle  just.     The  person  whose 


606  RYLANDS    V.    FLETCHER.  [CHAP.    XIX. 

grass  or  corn  is  eaten  down  by  the  escaping  cattle  of  his  nei,2;hbor, 
or  whose  mine  is  flooded  by  the  water  from  his  neighbor's  reservoir, 
or  whose  cellar  is  invaded  by  the  filth  of  his  neighbor's  privy,  or 
whose  habitation  is  made  unhealthy  by  the  fumes  and  noisome  vapors 
of  his  neighbor's  alkali  works,  is  damnified  without  any  fault  of  his 
own ;  and  it  seems  but  reasonable  and  just  that  the  neighbor  who  has 
brought  something  on  his  own  property  (which  was  not  naturally 
there),  harmless  to  others  so  long  as  it  is  confined  to  his  own  property, 
but  which  he  knows  will  be  mischievous  if  it  gets  on  his  neighbor's, 
should  be  obliged  to  make  good  the  damage  which  ensues  if  he  does 
not  succeed  in  confining  it  to  his  own  property.  But  for  his  act  in 
bringing  it  there,  no  mischief  could  have  accrued;  and  it  seems  but 
just  that  he  should  at  his  peril  keep  it  there  so  that  no  mischief  may 
accrue,  or  answer  for  the  natural  and  anticipated  consequence.  And 
upon  authority  this,  we  think,  is  established  to  be  the  law,  whether 
the  things  so  brought  be  beasts,  or  water,  or  filth,  or  stenches." 

My  lords,  in  that  opinion  I  must  say  I  entirely  concur.  Therefore 
I  have  to  move  your  lordships  that  the  judgment  of  the  Court  of 
Exchequer  Chamber  be  affirmed,  and  that  the  present  appeal  be  dis- 
missed with  costs. 

Lord  Ckaxworth.  My  lords,  I  concur  with  my  noble  and  learned 
friend  in  thinking  that  the  rule  of  law  was  correctly  stated  by  Mr. 
Justice  Blackburn  in  delivering  the  opinion  of  the  Exchequer  Cham- 
ber. If  a  person  brings,  or  accumulates,  on  his  land  anything  which, 
if  it  should  escape,  may  cause  damage  to  his  neighbor,  he  does  so  at 
his  peril.  If  it  does  escape,  and  cause  damage,  he  is  responsible, 
however  careful  he  may  have  been,  and  whatever  precautions  he  may 
have  taken  to  prevent  the  damage. 

In  considering  whether  a  defendant  is  liable  to  a  plaintiff  for  dam- 
age which  the  plaintiff  may  have  sustained,  the  question  in  general 
is  not  whetlier  the  defendant  has  acted  with  due  care  and  caution, 
l)ut  whether  his  acts  have  occasioned  the  damage.  This  is  all  well 
explained  in  the  old  case  of  Lambert  v.  Bessey,  reported  by  Sir 
Thomas  Raymond.^  And  the  doctrine  is  founded  on  good  sense.  For 
when  one  person,  in  managing  his  own  affairs,  causes  however  inno- 
cently damage  to  another,  it  is  obviously  only  just  that  he  should  be 
the  party  to  suffer.  Pie  is  bound  "  sic  uti  suo  ut  non  laedat  alienum." 
This  is  the  principle  of  law  applicable  to  cases  like  the  present,  and  I 
do  not  discover  in  the  authorities  which  were  cited  anj^thing  con- 
flicting with  it. 

The  doctrine  appears  to  me  to  be  well  illustrated  by  the  two  modern 
cases  in  the  Court  of  Common  Pleas  referred  to  by  my  noble  and 
learned  friend.  I  allude  to  the  two  cases  of  Smith  v.  Kenrick  and 
Baird  v.  ^\'illiamson.    In  tlie  former  the  owner  of  a  coal  mine  on  the 

'  T.  ItBvm  'll!!.  V.wt  dh  ttio  Rpnorallty  of  this  lnnp;uaKe  compare  Vopcrler  v.  City 
of   Ni.rlh    V'lTnon,    iinli',    p.    LTi. 


CHAP.    XIX.]  ESCAPE    OF    DANGEROUS    THINGS.  6U7 

higher  level  worked  out  the  whole  oi"  his  coal,  leaving  no  harrier  he- 
tween  his  mine  and  the  mine  on  the  lower  level,  so  that  the  water  per- 
colating through  the  upper  mine  flowed  into  the  lower  mine  and 
obstructed  the  owner  of  it  in  getting  his  coal.  It  was  held  tliat  the 
owner  of  the  lower  mine  had  no  ground  of  eomphiint.  The  defend- 
ant, the  owner  of  the  upper  mine,  had  a  right  to  remove  all  his  coal. 
The  damage  sustained  by  the  plaintiff  was  occasioned  by  the  natural 
flow  or  percolation  of  water  from  the  upper  strata.  There  was  no 
obligation  on  the  defendant  to  protect  the  plaintiff  against  this.  It 
was  his  business  to  erect  or  leave  a  sufficient  barrier  to  keep  out  the 
water,  or  to  adopt  proper  means  for  so  conducting  the  water  that  it 
should  not  impede  him  in  his  workings.  The  water,  in  that  case,  was 
only  left  by  the  defendant  to  flow  in  its  natural  course. 

But  in  the  later  case  of  Baird  v.  Williamson  the  defendant,  the 
owner  of  the  upper  mine,  did  not  merely  suffer  the  water  to  flow 
through  his  mine  without  leaving  a  barrier  between  it  and  the  mine 
below,  but  in  order  to  work  his  own  mine  beneficially  he  pumped  up 
quantities  of  water  which  passed  into  the  plaintiff's  mine  in  addition 
to  that  which  would  have  naturally  reached  it,  and  so  occasioned  him 
damage.  Though  this  was  done  without  negligence,  and  in  the  due 
working  of  his  own  mine,  yet  he  was  held  to  be  responsible  for  the 
damage  so  occasioned.  It  was  in  consequence  of  his  act,  whether 
skilfully  or  unskilfully  performed,  that  the  plaintiff  had  been  dam- 
aged, and  he  was  therefore  held  liable  for  the  consequences.  The 
damage  in  the  former  case  may  be  treated  as  having  arisen  from 
the  act  of  God;  in  the  latter  from  the  act  of  the  defendant. 

Applying  the  principle  of  these  decisions  to  the  case  now  before 
the  House,  I  come  without  hesitation  to  the  conclusion  that  the 
judgment  of  the  Exchequer  Chamber  was  right.  The  plaintiff  had 
a  right  to  work  his  coal  through  the  lands  of  Mr.  Whitehead,  and  up 
to  the  old  workings.  If  water  naturally  rising  in  the  defendants' 
land  (we  may  treat  the  land  as  the  land  of  the  defendants  for  the 
purpose  of  this  case)  had  by  percolation  found  its  way  down  to  the 
plaintiff's  mine  through  the  old  workings,  and  so  had  impeded  his 
operations,  that  would  not  have  afforded  him  any  ground  of  com- 
plaint. Even  if  all  the  old  workings  had  been  made  by  the  plaintiff, 
he  would  have  done  no  more  than  he  was  entitled  to  do;  for  ac- 
cording to  the  principle  acted  on  in  Smith  v.  Kenrick,  the  person 
working  the  mine,  under  the  close  in  which  the  reservoir  was  made, 
had  a  right  to  win  and  carry  away  all  the  coal  without  leaving  any 
wall  or  barrier  against  Wliitehead's  land.  But  that  is  not  the  real 
state  of  the  case.  The  defendants,  in  order  to  effect  an  object  of 
their  own,  brought  on  to  their  land,  or  on  to  land  which  for  this  pur- 
pose may  be  treated  as  being  theirs,  a  large  accumulated  mass  of 
water,  and  stored  it  up  in  a  reservoir.  Tlie  consequence  of  this  was 
damage  to  the  plaintiff;  and  for  that  damage,  however  skilfully  and 


608  LOSEE    V.    BUCHANAN.  [CHAP,    XIX, 

carefully  the  accumulation  was  made,  the  defendants,  according  to 
the  principles  and  authorities  to  which  I  have  adverted,  were  certainly 
responsible. 

I  concur  therefore  with  my  noble  and  learned  friend  in  thinking 
that  the  judgment  below  must  be  affirmed,  and  that  there  must  be 
judgment  for  the  defendant  in  error. 

Judgment  of  the  Court  of  Exchequer  Chamber  affirmed.^ 


LOSEE  V.  BUCHANAN". 

Court  of  Appeals  of  New  York,  January,  1873.     51  N.  Y.  476. 

Action  for  damages  caused  by  the  explosion  of  a  boiler  on  the 
premises  of  defendant  corporation,  the  Saratoga  Paper  Company,  and 
injuring  property  belonging  to  the  plaintiff.  With  the  corporation  the 
plaintiff  had  joined  certain  persons  who  as  trustees  and  stockholders 
were  interested  in  the  same,  and  also  certain  persons  named  Clute 
who  had  made  the  boiler.  Against  the  Clutes  negligence  was  al- 
leged; while  the  others  were  treated  by  the  plaintiff  as  liable  without 
negligence.    The  rest  of  the  case  appears  in  the  opinion  of  the  court. 

Earl,  C."  Upon  the  first  trial  of  this  action,  the  presiding  judge 
dismissed  the  complaint  as  against  the  defendants  Clute,  who  manu- 
factured the  engine,  and  held  that  the  other  defendants  were  liable 
irrespective  of  negligence,  and  excluded  all  evidence  to  show  that 
they  were  not  guilty  of  negligence.  For  this  error,  upon  appeal  to 
the  General  Term,  the  judgment  was  reversed  and  new  trial  granted, 
the  court  holding  that  the  defendants  could  be  made  liable  only  by 
proof  against  them  of  negligence.  Upon  the  second  trial,  the  pre- 
siding judge  held,  in  accordance  with  the  law  as  thus  laid  down  by 
the  General  Term,  and  upon  the  question  of  negligence  the  jury  de- 
cided against  the  Saratoga  Paper  Company  and  in  favor  of  the  other 
two  defendants.  The  plaintiff  claimed,  as  he  did  upon  the  first  trial, 
that  the  defendants  were  liable  without  the  proof  of  any  negligence, 
and  requested  the  justice  so  to  rule,  and  the  refusal  of  the  justice 
to  comply  with  this  request  raises  the  principal  question  for  our 
consideration  upon  this  appeal. 

Upon  the  last  appeal,  the  majority  of  the  court  held  the  law 
to  be  as  it  had  been  held  upon  the  first  appeal,  but  a  new  trial  was 
granted  for  certain  alleged  errors  in  the  charge  of  the  justice, 
wliich  will  hereafter  be  considered.  The  claim  on  the  part  of  the 
plaintiff  is,  that  the  casting  of  the  boiler  upon  his  premises  by  the 
explosion  was  a  direct  trespass  upon  liis  riglit  of  undisturbed  pos- 

1  Spfi  (llRciiBRlon  of  thiR  rase  by  Dop,  .7.,  In  Rrown  v.  Collins,  53  N.   H.  442. 
s  CommlBsioner  of  appeals,  under  special  statute. 


CHAP.    XIX.]  ESCAPE  OF  DANGEROUS  THINGS.  609 

session  and  occupation  of  his  premises,  and  that  the  defendants  are 
liable  just  as  they  would  have  been  for  any  other  wrongful  entry 
and  trespass  upon  his  premises.  I  do  not  believe  this  claim  to  be 
well  founded,  and  I  will  briefly  examine  the  authorities  upon  which 
mainly  an  attempt  is  made  to  sustain  it. 

In  Farrand  v.  Marshall,  21  Barb,  409,  it  was  held  that  a  man  may 
dig  on  his  own  land,  but  not  so  near  that  of  his  neighbor  as  to  cause 
the  land  of  the  latter  to  fall  into  his  pit,  thus  transferring  a  portion 
of  another  man's  land  to  his  own.  This  is  upon  the  principle  that 
every  man  has  the  natural  right  to  the  use  of  his  land  in  the  situa- 
tion in  which  it  was  placed  by  nature,  surrounded  and  protected  by 
the  soil  of  the  adjacent  lots.  He  has  a  right  to  the  support  of  the 
adjoining  soil,  and  to  that  extent  has  an  easement  in  his  neighbor's 
soil,  and  when  the  soil  is  removed  his  easement  has  been  interfered 
with.  Where  one  adjoining  owner  thus  removes  the  soil,  he  is  not 
doing  simply  what  he  may  with  his  own,  but  he  is  interfering  with 
the  right  which  his  neighbor  has  in  the  same  soil.  This  rule,  how- 
ever, as  stated  by  Judge  Bronson  in  Eadcliff's  Executors  v.  Mayor, 
etc.,  of  Brooklyn,  4  Comst.  203,  must  undoubtedly  be  somewhat  modi- 
fied in  its  application  to  cities  and  villages.  In  Hay  v.  The  Cohoes 
Company,  2  Comst.  159,  the  defendant,  a  corporation,  dug  a  canal 
upon  its  own  land  for  the  purposes  authorized  by  its  charter.  In  so 
doing  it  was  necessary  to  blast  rocks  and  gunpowder,  and  the  frag- 
ments were  thrown  against  and  injured  the  plaintiff's  dwelling  upon 
lands  adjoining.  It  was  held  that  the  defendant  was  liable  for  the 
injury,  although  no  negligence  or  want  of  skill  in  executing  the  work 
was  alleged  or  proved.  This  decision  was  well  supported  by  the  clear- 
est principles.  The  acts  of  the  defendant  in  casting  the  rocks  upon 
plaintiff's  premises  were  direct  and  immediate.  The  damage  was  the 
necessary  consequence  of  just  what  the  defendant  was  doing,  and  it 
was  just  as  much  liable  as  if  it  had  caused  the  rocks  to  be  taken  by 
hand,  or  any  other  means,  and  thrown  directly  upon  plaintiff's  land. 
This  is  far  from  an  authority  for  holding  that  the  defendants,  who 
placed  a  steam-boiler  upon  their  lands,  and  operated  the  same  with 
care  and  skill,  should  be  liable  for  the  damages  caused  by  the  ex- 
plosion, without  their  fault  or  any  direct  or  immediate  act  of  theirs. 
It  is  true  that  Judge  Gardner,  in  writing  the  opinion  of  the  court, 
lays  down  broadly  the  principle  that  "  every  individual  is  entitled 
to  the  undisturbed  possession  and  lawful  enjo}Tnent  of  his  own  prop- 
erty," citing  the  maxim  sic  utere  tuo,  etc.  But  this  principle,  as  well 
as  the  maxim,  as  will  be  seen,  has  many  exceptions  and  limitations, 
made  necessary  by  the  exigencies  of  business  and  society. 

In  Bellinger  v.  The  Xew  York  C.  R.  R.  Co.,  23  N"."^  Y.  47,  it  was 
decided  that  where  one  interferes  with  the  current  of  a  running 
stream,  and  causes  damage  to  those  who  are  entitled  to  have  the 
water  flow  in  its  natural  channel,  but  such  interference  is  in  pursuance 


610  LOSEE   V.    BUCHANAN.  [CHAP.    XIX. 

of  legislative  authority  granted  for  the  purpose  of  constructing  a 
work  of  public  utility,  upon  making  compensation  he  is  liable  only  for 
such  injury  as  results  from  the  want  of  due  skill  and  care  in  so  ar- 
ranging the  necessary  works  as  to  avoid  any  danger  reasonably  to 
be  anticipated  from  the  habits  of  the  stream  and  its  liability  to 
floods.  Judge  Denio,  in  his  opinion,  referring  to  the  maxim  aqua 
currit  et  debet  currere,  says,  it  "  absolutely  prohibits  an  individual 
from  interfering  with  the  natural  flow  of  water  to  the  prejudice  of 
another  riparian  owner  upon  any  pretence,  and  subjects  him  to  dam- 
ages at  the  suit  of  any  party  injured  without  regard  to  any  question 
of  negligence  or  want  of  care."  The  liability  in  such  cases  is  based 
upon  the  principle  that  the  interference  is  an  immediate  and  direct 
violation  of  the  right  of  the  other  riparian  owners  to  have  the  water 
flow  in  its  natural  channel.  No  one  has  an  absolute  property  in  the 
water  of  a  running  stream.  He  may  use  it,  but  he  must  not,  by  his 
use  of  it,  interfere  with  the  equal  right  which  other  riparian  owners 
have  also  to  use  it,  and  have  it  flow  in  its  natural  way  in  its  natural 
channel. 

In  Pixley  v.  Clark,  35  N.  Y.  520,  it  was  held,  that  if  one  raises 
the  water  in  a  natural  stream  above  its  natural  banks,  and  to  pre- 
vent its  outflow  constructs  embankments  which  answer  the  purpose 
perfectly,  but  by  the  pressure  of  the  water  upon  the  natural  banks 
of  the  stream  percolation  takes  place  so  as  to  drain  ^  the  adjoining 
lands  of  another,  an  action  will  lie  for  the  damages  occasioned 
thereby;  and  that  it  matters  not  whether  the  damage  is  occasioned  by 
the  overflow  of  or  the  percolation  through  the  natural  banks,  so  long 
as  the  result  is  occasioned  by  an  improper  interference  with  the 
natural  flow  of  the  stream.  This  decision  was  an  application  of  the 
maxim  aqua  currit  et  debet  currere  to  the  facts  of  that  case.  It  was 
held  that  the  liability  was  the  same  whether  the  water  was  dammed 
up  and  caused  to  overflow  or  to  percolate  through  the  banks  of  the 
stream.  It  was  a  case  of  flooding  lands  by  damming  up  the  water 
of  a  stream,  and  the  liability  of  a  wrong-doer  in  such  a  case  has 
never  been  disputed. 

In  the  case  of  Selden  v.  The  Delaware  and  Hudson  Canal  Co.,  24 
Barb.  362,  it  was  held  that  the  defendant  had  the  power,  under  its 
charter,  to  enlarge  its  canal ;  but  that,  though  it  possessed  this  power, 
and  upon  making  compensation  therefor,  to  take  private  property  for 
that  purpose,  it  was  liable  to  remunerate  individuals  in  damages 
for  any  injuries  they  might  sustain  as  the  consequence  of  such  im- 
provement; and  that,  if  by  means  of  the  enlargement,  a  lawful  act  in 
itself,  the  lands  of  an  individual  were  inundated,  even  though  the 
work  may  have  been  pcrforuK'd  with  all  roiisonablo  care  and  skill,  it 
was  a  legal  injury,  for  which  the  owner  was  entitled  to  redress.  It 
may  well  bo  doubted  if  this  decision  can  stand  in  view  of  the  prin- 

'  sir,    for   drown. 


CHAP.   XIX.]  ESCAPE  OF  DANGEROUS  THINGS.  611 

ciples  laid  down  in  the  case  of  Bellinger  v.  The  New  York  Central 
Eailroad  Company,  supra.  Within  the  principles  of  that  case,  if  the 
Delaware  and  Hudson  Canal  Compan}'  exercised  a  power  conferred 
upon  it  by  law  in  a  lawful  and  proper  manner,  it  could  not  be  held 
liable  for  the  consequential  damages  necessarily  occasioned  to  the 
owners  of  adjoining  lands.  But  if  we  assume,  as  was  assumed  at 
the  General  Term  in  that  case,  that  the  defendant  did  not  have  the 
protection  of  the  law  for  the  damages  which  it  occasioned,  then  it 
was  clearly  liable.  Its  acts  were  necessarily  and  directly  injurious  to 
the  plaintiff.  It  kept  the  water  in  its  canal  when  it  knew  that  the 
necessary  consequence  was  to  flood  the  plaintiff's  premises.  The 
damage  to  plaintiff  was  not  accidental,  but  continuous,  direct,  and 
necessary.  In  such  a  case  the  wrong-doer  must  be  held  to  have  in- 
tended the  consequence  of  his  acts,  and  must  be  treated  like  one  keep- 
ing upon  his  premises  a  nuisance  doing  constant  damage  to  his  neigh- 
bor's property. 

In  the  case  of  McKeon  v.  Lee,  4  Rob.  Superior  Court  R.,  449,  it 
was  held,  that  the  defendant  had  no  right  to  operate  a  steam-engine 
and  other  machinery  upon  his  premises  so  as  to  cause  the  vibration 
and  shaking  of  plaintiff's  adjoining  buildings  to  such  an  extent  as  to 
endanger  and  injure  them.  This  case  was  decided  upon  the  law  of 
nuisances.  It  was  held  that  the  engine  and  machinery,  in  the  mode 
in  which  they  were  operated,  were  a  nuisance,  and  the  decision  has 
been  affirmed  at  this  term  of  the  court.  The  decision  in  this  case, 
and  in  scores  of  similar  cases  to  be  found  in  the  books,  is  far  from 
an  authority  that  one  should  be  held  liable  for  the  accidental  explosion 
of  a  steam  boiler  which  was  in  no  sense  a  nuisance.  We  are  also 
cited  to  a  class  of  cases  holding  the  owners  of  animals  responsible 
for  injuries  done  by  them.  There  is  supposed  to  be  a  difference  as  to 
responsibility  between  animals  mansuetae  naturae  and  ferae  •  naturae. 
As  to  the  former,  in  which  there  can  be  an  absolute  right  of  property, 
the  owner  is  bound  at  common  law  to  take  care  that  they  do  not  stray 
upon  the  lands  of  another,  and  he  is  liable  for  any  trespass  they  may 
commit,  and  it  is  altogether  immaterial  whether  their  escape  is  purely 
accidental  or  due  to  negligence.  As  to  the  latter,  which  are  of  a 
fierce  nature,  the  owner  is  bound  to  take  care  of  them  and  keep  them 
under  control,  so  that  they  can  do  no  injury.  But  the  liability  in 
each  case  is  upon  the  same  principle.  The  former  have  a  known, 
natural  disposition  to  stray,  and  hence  the  owner  knowing  this  dis- 
position is  supposed  to  be  in  fault  if  he  do  not  restrain  them  and 
keep  them  under  control.  As  to  the  former,  the  owner  is  not  re- 
sponsible for  such  injuries  as  they  are  not  accustomed  to  do,  by  the 
exercise  of  vicious  propensities  which  they  do  not  usually  have,  un- 
less it  can  be  shown  that  he  has  knowledge  of  the  vicious  habit  and 
propensity.  As  to  all  animals,  the  owner  can  usually  restrain  and 
keep  them  under  control,  and  if  he  will  keep  them  he  must  do  so.    If 


612  LOSEE   V.   BUCHANAN.  [CHAP.    XIX. 

he  does  not,  he  is  responsible  for  any  damage  which  their  well- 
known  disposition  leads  them  to  commit.  I  believe  the  liability  to  be 
based  upon  the  fault  which  the  law  attributes  to  him,  and  no  further 
actual  negligence  need  be  proved  than  the  fact  that  they  are  at 
large  unrestrained.  But  if  I  am  mistaken  as  to  the  true  basis  of 
liability  in  such  cases,  the  body  of  laws  in  reference  to  live  animals, 
which  is  supposed  to  be  just  and  wise,  considering  the  nature  of  the 
animals  and  the  mutual  rights  and  interests  of  the  owners  and  others, 
does  not  furnish  analogies  absolutely  controlling  in  reference  to  in- 
animate property. 

Blackstone  (vol.  3,  p.  209)  says,  "that  whenever  an  act  is  di- 
rectly and  immediately  injurious  to  the  person  or  property  of  another, 
and  therefore  necessarily  accompanied  with  some  force,  an  action  of 
trespass  vi  et  armis  will  lie ; "  for  "  the  right  of  meum  and  tuum  or 
property  in  lands  being  once  established,  it  follows  as  a  necessary 
consequence  that  this  right  must  be  exclusive;  that  is,  that  the  owner 
may  retain  to  himself  the  sole  use  and  occupation  of  his  soil.  Every 
entry,  therefore,  thereon  without  the  owner's  leave,  and  especially 
contrary  to  his  express  order,  is  a  trespass  or  transgression."  The 
learned  author  was  here  laying  down  the  distinction  between  an  ac- 
tion of  trespass  and  trespass  on  the  case,  and  asserting  the  rule  that 
in  the  former  action  the  injury  must  be  direct  and  immediate,  and 
accompanied  with  some  force,  whereas  in  the  latter  action  it  could 
be  indirect  and  consequential.  He  was  also  manifestly  speaking  of 
a  direct  entrance  by  one  upon  the  lands  of  another.  He  was  laying 
do^Ti  a  general  rule  that  every  unauthorized  entrance  upon  the  land 
of  another  is  a  trespass.  This  was  sufficiently  accurate  for  the  enun- 
ciation of  a  general  rule.  Judges  and  legal  writers  do  not  always 
find  it  convenient,  practicable,  or  important,  in  laying  down  general 
rules,  to  specify  all  the  limitations  and  exceptions  to  such  rules.  The 
rule,  as  thus  announced,  has  many  exceptions,  even  when  one  makes 
a  personal  entry  upon  the  lands  of  another.  I  may  enter  my  neigh- 
bor's close  to  succor  his  beast  whose  life  is  in  danger;  to  prevent 
his  beasts  from  being  stolen  or  to  prevent  his  grain  from  being  con- 
sumed or  spoiled  by  cattle ;  or  to  carry  away  my  tree  which  has  been 
blown  down  upon  his  land,  or  to  pick  up  my  apples  wliich  bave 
fallen  from  my  trees  upon  his  land,  or  to  take  my  personal  property 
which  another  has  wrongfully  taken  and  placed  there,  or  to  escape 
from  one  who  threatens  my  life.  Bacon's  Abridgment,  Trespass,  F. 
Other  illustrations  will  be  given  hereafter. 

By  becoming  a  member  of  civilized  society,  I  am  compelled  to  give 
up  many  of  my  natural  rights,  but  I  receive  more  than  a  compensation 
from  the  surrender  by  every  other  man  of  the  same  rights,  and  the 
fiecnrity,  advantage,  and  protection  which  the  laws  give  me.  So, 
too,  the  general  rules  that  I  may  have  the  exclusive  and  undisturbed 
use  and  possession  of  my  real  estate,  and  that  I  must  so  use  my  real 


CHAP,    XIX.]  ESCAPE  OF  DANGEROUS  THINGS.  613 

estate  as  not  to  injure  my  neighbor,  are  much  modified  by  the  ex- 
igencies of  the  social  state.  We  must  have  factories,  machineries, 
dams,  canals,  and  railroads.  They  are  demanded  by  the  manifold 
wants  of  mankind,  and  lie  at  the  basis  of  all  our  civilization.  If  I 
have  any  of  these  upon  my  lands,  and  they  are  not  a  nuisance  and 
are  not  so  managed  as  to  become  such,  I  am  not  responsible  for  any 
damage  they  accidentally  and  unavoidably  do  my  neighbor.  He  re- 
ceives his  compensation  for  such  damage  by  the  general  good,  in 
which  he  shares,  and  the  right  which  he  has  to  place  the  same  things 
upon  his  lands.  I  may  not  place  or  keep  a  nuisance  upon  my  land  to 
the  damage  of  my  neighbor,  and  I  have  my  compensation  for  the  sur- 
render of  this  right  to  use  my  own  as  I  will  by  the  similar  restriction 
imposed  upon  my  neighbor  for  my  benefit.  I  hold  my  property  subject 
to  the  risk  that  it  may  be  unavoidably  or  accidentally  injured  by  those 
who  live  near  me ;  and  as  I  move  about  upon  the  public  highways  and 
in  all  places  where  other  persons  may  lawfully  be,  I  take  the  risk  of  be- 
ing accidentally  injured  in  my  person  by  them  without  fault  on  their 
part.  Most  of  the  rights  of  property,  as  well  as  of  person,  in  the 
social  state,  are  not  absolute  but  relative,  and  they  must  be  so  ar- 
ranged and  modified,  not  unnecessarily  infringing  upon  natural 
rights,  as  upon  tlie  whole  to  promote  the  general  welfare. 

I  have  so  far  found  no  authorities  and  no  principles  which  fairly 
sustain  the  broad  claim  made  by  the  plaintiff,  that  the  defendants 
are  liable  in  this  action  without  fault  or  negligence  on  their  part 
to  which  the  explosion  of  the  boiler  could  be  attributed. 

But  our  attention  is  called  to  a  recent  English  case,  decided  in 
the  Exchequer  Chamber,  which  seems  to  uphold  the  claim  made.  In 
the  case  of  Fletcher  v.  Eylands,  1  Ex.  265,  Law  Eeports,i  the  de- 
fendants constructed  a  reservoir  on  land  separated  from  the  plain- 
tiff's colliery  by  intervening  land.  Mines  under  the  site  of  the  reser- 
voir and  under  part  of  the  intervening  land  had  been  formerly 
worked,  and  the  plaintiff  had,  by  working  lawfully,  made  in  his  own 
colliery  and  in  the  intervening  land  an  underground  communication 
between  his  colliery  and  the  old  workings  under  the  reservoir.  It  was 
not  known  to  the  defendants,  nor  to  any  person  employed  by  them  in 
the  construction  of  the  reservoir,  that  such  communication  existed, 
or  that  there  were  any  old  workings  under  the  site  of  tlie  reservoir, 
and  the  defendants  were  not  personally  guilty  of  any  negligence ;  but, 
in  fact,  the  reservoir  was  constructed  over  five  old  shafts,  leading 
down  to  the  workings.  On  the  reservoir  being  filled,  the  water  burst 
down  these  shafts  and  flowed,  by  the  underground  communication, 
into  the  plaintiff's  mines.  It  was  held,  reversing  the  judgment  of  the 
Court  of  Exchequer,  that  the  defendants  were  liable  for  the  damage 
so  caused,  upon  the  broad  doctrine  that  one  who,  for  his  own  pur- 
poses, brings  upon  his  land,  and  collects  and  keeps  there,  anything 

lAnte,   p.  602. 


614  LOSEE    V.    BUCHANAN.  [CIIAP.    XIX. 

likely  to  do  mischief  if  it  escapes,  must  keep  it  at  his  peril,  and,  if 
he  does  not  do  so,  is  prima  facie  answerable  for  all  the  damage  which 
is  the  natural  consequence  of  its  escape.  Mr.  Justice  Blackburn, 
writing  the  opinion  of  the  court,  says :  "  The  question  of  law  there- 
fore arises,  what  is  the  obligation  which  the  law  casts  on  a  person 
who,  like  the  defendants,  lawfully  brings  on  his  land  something  which, 
though  harmless  whilst  it  remains  there,  will  naturally  do  mischief 
if  it  escape  out  of  his  land?  It  is  agreed  on  all  hands  that  he  must 
take  care  to  keep  in  that  which  he  has  brought  on  the  land  and 
keeps  there,  in  order  that  it  may  not  escape  and  damage  his  neigh- 
bors; but  the  question  arises  whether  the  duty  which  the  law  casts 
upon  him,  under  such  circumstances,  is  an  absolute  duty  to  keep 
it  in  at  his  peril,  or  is,  as  the  majority  of  the  Court  of  Exchequer 
have  thought,  merely  a  duty  to  take  all  reasonable  and  prudent  pre- 
cautions in  order  to  keep  it  in,  but  no  more ;  "  and  he  reaches  the 
conclusion  that  it  is  an  absolute  duty,  and  that  the  liability  for 
damage  from  the  escape  attaches  without  any  proof  of  negligence. 
This  conclusion  is  reached  by  the  learned  judge  mainly  by  applying 
to  the  case  the  same  rule  of  liability  to  w^hich  owners  are  subjected 
by  the  escape  of  their  live  animals.  As  I  have  shown  above,  the  rules 
of  law  applicable  to  live  animals  should  not  be  applied  to  inanimate 
property.  That  case  was  appealed  to  the  House  of  Lords  and  affirmed. 
3  H.  L.  [Law  Eep.]  330,^  and  was  followed  in  Smith  v.  Fletcher,  20 
W.  E.  987. 

It  is  sufficient,  however,  to  say  that  the  law,  as  laid  down  in  those 
cases,  is  in  direct  conflict  with  the  law  as  settled  in  this  country. 
Here,  if  one  builds  a  dam  upon  his  own  premises  and  thus  holds 
back  and  accumulates  the  water  for  his  benefit,  or  if  he  brings  water 
upon  his  premises  into  a  reservoir,  in  case  the  dam  or  the  banks  of 
the  reservoir  give  way  and  the  lands  of  a  neighbor  are  thus  flooded, 
he  is  not  liable  for  the  damage  without  proof  of  some  fault  or  negli- 
gence on  his  part.  Angell  on  Water-courses,  §  336;  Lapham  v.  Cur- 
tis, 5  Vt.  371;  Todd  v.  Cochcll,  17  Cal.  97;  Everett  v.  Hydraulic,  etc., 
Co.,  23  Id.  225;  Shrewsbury  v.  Smith,  12  Cush.  177;  Livingston  v. 
Adams,  8  Cowen,  175;  Bailey  v.  Mayor,  etc.,  of  New  York,  3  Hill, 
531,  s.  c.  2  Denio,  433;  Pixley  v.  Clark,  35  N.  Y.  520,  524;  Sheldon 
V.  Sherman,  43  Id.  484. 

The  true  rule  is  laid  down  in  the  case  of  Livingston  v.  Adams  as 
follows:  "Where  one  builds  a  mill-dam  upon  a  proper  model,  and 
the  work  is  well  and  sul^stantially  done,  he  is  not  liable  to  an  action 
though  it  br(!ak  away,  in  consequence  of  which  his  neighbor's  dam 
and  mill  below  are  destroyed.  Negligence  should  l)o  sliown  in  order 
to  make  him  liable." 

In  conflict  witli  fbc  rule  as  laid  down  in  the  I'^nglish  cases  is  a 
class  of  cases  in   reference  to  damage  from  fire  communicated  from 

'  Ante.   p.   «02. 


CHAP,    XIX.]  ESCAPE  OF  DANGEROUS  THINGS.  615 

the  adjoining  premises.  Fire,  like  water  or  steam,  is  likely  to  pro- 
duce mischief  if  it  escapes  and  goes  beyond  control;  and  yet  it  has 
never  been  held  in  this  country  that  one  building  a  fire  upon  his 
own  premises  can  be  made  liable  if  it  escapes  upon  his  neighbor's 
premises  and  does  him  damage  without  proof  of  negligence.  Clark  v. 
Foot,  8  J.  K.  422;  Stuart  v.  Hawley,  22  Barb.  619;  Calkins  v. 
Barger,  44  Id.  424;  Lansing  v.  Stone,  37  Id.  15;  Barnard  v.  Poor, 
21  Pick.  378;  Tourtellot  v.  Rosebrook,  11  Met.  460;  Batchelder  v. 
Heagan,  18  Maine,  32.  The  rule,  as  laid  down  in  Clark  v.  Foot,  is 
as  follows :  "  If  A.  sets  fire  to  his  own  fallow  ground,  as  he  may 
lawfully  do,  which  communicates  to  and  fires  the  woodland  of  B., 
his  neighbor,  no  action  lies  against  A.  unless  there  was  some  negli- 
gence or  misconduct  in  him  or  his  servant."  And  this  is  the  rule 
throughout  this  country  except  where  it  has  been  modified  by  statute. 
Tourtellot  v.  Eosebrook  was  an  action  to  recover  damages  caused  by  a 
fire  communicated  to  the  plaintifll's  land  from  a  coal-pit  which  the 
defendant  lawfully  set  on  fire  upon  his  own  land,  and  it  was  held 
that  the  burden  was  on  the  plaintiff  to  prove  negligence  on  the  part 
of  the  defendant.  In  Hinds  v.  Barton,  25  N.  Y.  544,  and  Teall  v. 
Barton,  40  Barb.  137,  sparks  were  emitted  from  a  steam-dredge  used 
upon  the  Erie  Canal,  and  they  set  fire  to  neighboring  buildings,  and 
although  the  sparks  were  thrown  directly  upon  the  buildings  it  was 
held  that  the  defendant  could  be  made  liable  only  by  proof  of  negli- 
gence. In  Cook  V.  The  Chamberlain  Transportation  Co.,  1  Denio, 
91,  the  buildings  of  the  plaintiff  were  fired  by  sparks  thrown  thereon 
from  defendant's  steamboat  upon  Lake  Champlain,  and  it  was  held 
that  the  defendant  could  be  made  liable  only  by  proof  of  negligence. 
All  these  cases  and  the  class  of  cases  to  which  they  belong  are  in  con- 
flict with  the  rule  as  claimed  by  the  plaintiff.  A  man  may  build  a 
fire  in  his  house  or  his  steam-boiler,  and  he  does  not  become  liable 
without  proof  of  negligence  if  sparks  accidentally  pass  directly  from 
his  chimney  or  smoke-stack  to  the  buildings  of  his  neighbor.  The 
maxim  of  sic  ^^tere  tuo,  etc.,  only  requires,  in  such  a  case,  the  exercise 
of  adequate  skill  and  care. 

The  same  rule  applies  to  injuries  to  the  person.  No  one  in  such 
case  is  made  liable  without  some  fault  or  negligence  on  his  part,  how- 
ever serious  the  injury  may  be  which  he  may  accidentally  cause ;  and 
there  can  be  no  reason  for  holding  one  liable  for  accidental  injuries 
to  property  when  he  is  exempt  from  liability  for  such  injuries  to  the 
person.  It  is  settled  in  numerous  cases,  that  if  one  driving  along 
a  highway  accidentally  injures  another  he  is  not  liable  without  proof 
of  negligence.  Center  v.  Finney,  17  Barb.,  94;  Hammock  v.  White, 
103  Eng.  Com.  Law,  587. 

In  Harvey  v.  Dunlop,  Lalor's  Supplement,^  193,  the  action  was 
for  throwing  a  stone  at  the  plaintiff's  daughter  and  putting  out  her 

1  HiU  &  Denio. 


61(5  LOSEE    V.    BUCHANAN.  [CIIAP.    XIX. 

eye.  It  did  not  appear  that  the  injury  was  inflicted  by  design  or 
carelessness,  but  did  appear  that  it  was  accidental,  and  the  court  held 
that  the  plaintiff:  could  not  recover,  laying  down  the  broad  rule  that 
no  liability  results  from  the  commission  of  an  act  arising  from  in- 
evitable accident,  or  which  ordinary  human  care  and  foresight  could 
not  guard  against.  In  Dygert  v.  Bradley,  8  Wend.  469,  the  action 
was  for  running  one  boat  against  another  in  the  Erie  canal,  and  the 
court  held  that  if  the  injury  was  occasioned  by  unavoidable  accident, 
no  action  would  lie  for  it;  but  if  any  blame  was  imputable  to  the 
defendant,  he  would  be  liable.  In  Brown  v.  Kendall,  6  Cush.  292,^  the 
defendant  having  interfered  to  part  his  dog  and  the  plaintiff's,  which 
were  fighting,  in  raising  his  stick  for  that  purpose,  accidentally 
struck  the  plaintiff  and  severely  injured  him;  it  was  held  that  he 
was  not  liable.  In  writing  the  opinion  of  the  court.  Chief  Justice 
Shaw  says:  "  It  is  frequently  stated  by  judges,  that  where  one  receives 
injury  from  the  direct  act  of  another,  trespass  will  lie.  But  we  think 
this  is  said  in  reference  to  the  question  whether  trespass  and  not 
case  will  lie,  assuming  that  the  facts  are  such  that  some  action  will 
lie.  These  dicta  are  no  authority,  we  think,  for  holding  that  damage 
received  by  a  direct  act  of  force  from  another  will  be  sufficient  to 
maintain  an  action  of  trespass,  whether  the  act  was  lawful  or  un- 
lawful, and  neither  wilful,  intentional  or  careless."  "  We  think,  as 
the  result  of  all  the  authorities,  that  the  rule  is  that  the  plaintiff  must 
come  prepared  with  evidence  to  show  either  that  the  intention  was 
unlawful,  or  that  the  defendant  was  in  fault;  for  if  the  injury  was 
unavoidable  and  the  conduct  of  the  defendant  was  free  from  blame, 
he  will  not  be  held  liable.  If,  in  the  prosecution  of  a  lawful  act,  a 
casualty  purely  accidental  arises,  no  action  can  be  supported  for  an 
injury  arising  therefrom."  So,  too,  contrary  to  what  was  held  in  an 
early  English  case,  if  one  raise  a  stick  in  self-defence  to  defend  him- 
self against  an  assault  and  accidentally  hit  a  third  person,  he  can- 
not, in  my  opinion,  be  made  liable  for  the  injury  thus,  without  fault 
or  negligence,  inflicted. 

In  Rockwood  v.  Wilson,  11  Cush.  221,  Mr.  Justice  Thomas  says: 
"  Nothing  can  be  better  settled  than  that  if  one  do  a  lawful  act  upon 
his  own  premises,  he  cannot  be  held  responsible  for  injurious  conse- 
quences that  may  result  from  it,  unless  it  was  so  done  as  to  constitute 
actionable  negligence." 

In  Bissell  v.  Booker,  16  Ark.  308,  it  was  held  that  one  who  is 
hunting  in  a  wilderness  is  not  bound  to  anticipate  the  presence,  within 
range  of  his  shot,  of  another  man,  and  tliat  lie  is  not  liable  for  an 
injury  caused  unintentionally  by  him  to  a  person  of  whose  presence 
he  was  not  aware.  Sec  also  the  cases  of  DriscoU  v.  The  Newark  and 
Roscndale  Co.,  37  N.  Y.  637. 

In  Spencer  v.  Campl)ell,  9  Watts  &   S.  32,  a  man  drove  a  horse 

«  Ante.   p.  :{()1. 


1 


CHAP.    XIX.]  ESCAPE  OF  DANGEROUS  THINGS.  617 

to  defendant's  steam  grist-mill  to  get  some  grist  which  he  had  had 
ground,  and  he  was  thus  lawfully  upon  defendant's  premises  and  was 
just  as  much  entitled  to  protection  there  as  if  he  had  been  upon  his 
own  premises.  While  there  the  steam-boiler  exploded  and  killed  his 
horse,  and  the  action  was  brought  for  the  value  of  the  horse;  and 
it  was  held  that,  to  entitle  the  plaintiff  to  recover,  he  was  bound 
to  show  the  want  of  ordinary  care,  skill  and  diligence.  I  am  unable 
to  see  how  that  case  differs  in  principle  from  the  one  at  bar.  To 
sustain  the  broad  claim  of  the  plaintiff  here,  it  should  have  been  held 
in  that  ease  that  the  owner  of  the  steam-boiler  was  absolutely  liable, 
irrespective  of  any  care,  skill  or  diligence  on  his  part,  for  any  dam- 
age which  the  boiler  by  its  explosion  occasioned  to  any  property  law- 
fully in  the  vicinity.  Within  the  rules  laid  down  by  these  autliorities, 
the  defendants  in  this  case  could  not,  without  proof  of  negligence,  be 
made  liable  for  injuries  caused  to  the  persons  of  those  who  were  near 
at  the  time  of  the  explosion;  and  it  would  be  quite  illogical  to  hold 
them  liable  for  injuries  to  property,  while  they  were  not  liable  for 
injuries  to  persons  by  the  same  accident. 

In  support  of  the  plaintiff's  claim  in  this  action  the  rule  has  been 
invoked  that,  where  one  of  two  innocent  parties  must  suffer,  he  who 
puts  in  motion  the  cause  of  the  injury  must  bear  the  loss.  But,  as 
will  be  seen  by  the  numerous  cases  above  cited,  it  has  no  application 
whatever  to  a  case  like  this. 

This  examination  has  gone  far  enough  to  show  that  the  rule  is, 
at  least  in  this  country,  a  universal  one,  which,  so  far  as  I  can  dis- 
cern, has  no  exceptions  or  limitations,  that  no  one  can  be  made  liable 
for  injuries  to  the  person  or  property  of  another  without  some  fault 
or  negligence  on  his  part.  In  this  case  the  defendants  had  the  right 
to  place  the  steam-boiler  upon  their  premises.  It  was  in  no  sense  a 
nuisance,  and  the  jury  have  found  that  they  were  not  guilty  of  any 
negligence.  The  judgment  in  their  favor  should,  therefore,  have 
been  affirmed  at  the  General  Term,  unless  there  were  errors  in  the 
charge,  or  refusal  to  charge,  of  the  judge  who  presided  at  the  trial, 
and  these  alleged  errors  I  will  now  briefly  examine. 

It  is  alleged  that  the  judge  erred  in  charging  the  jury  that  "  de- 
fendants are  not  liable  for  negligence  or  want  of  skill  on  the  part  of 
the  manufacturers  of  the  boiler  in  question  not  known  to  them ; " 
"  that  defendants  are  not  liable  except  upon  proof  of  negligence  or 
unskilfulness  on  the  part  of  the  authorized  servants  or  agents  of 
the  company ; "  "  that  there  is  no  proof  of  any  relation  between  the 
plaintiff  and  defendant,  Buchanan,  creating  any  obligation  or  duty 
on  the  part  of  the  latter  toward  the  former;"  "that  defendant, 
Buchanan,  is  not  liable  for  any  negligence  or  unskilfulness  on  the 
part  of  the  Saratoga  Company  or  on  the  part  of  the  manufacturers 
of  the  boiler  in  question."  These  are  not  found  in  the  charge,  but 
were  decisions  made  upon  the  motion  for  a  nonsuit,  and  were  not 
excepted  to. 


618  LOSEE   V.   BUCHANAN.  [CHAP.    XIX.- 

The  judge  charged  the  jury  "  that  if  they  were  of  opinion  that 
the  reduction  by  Goddard  (the  engineer  and  agent  of  the  paper 
company,  who  had  charge  of  the  boiler)  of  the  steam  pressure  from 
120  to  110  was  a  proper,  prudent  and  sufficient  exercise  of  care  and 
skill  under  the  circumstances,  that  the  defendants  were  not  liable 
on  account  of  leakage ; "  "  that  the  cold  shut  in  the  head  that  pre- 
viously gave  out  was  no  evidence  of  the  cold  shut  in  the  head  that  did 
give  out ; "  "  that  if  Goddard  told  Bullard  that  it  would  be  prudent  to 
run  the  steam-boiler  at  110,  and  if  Bullard  believed  that  and  acted 
upon  it,  then  he  was  not  liable;"  "that  if  the  jury  found  from  the 
evidence  that  Goddard  came  to  the  conclusion  that  to  reduce  the 
pressure  from  120  to  110  would  render  the  use  of  the  boiler  prudent 
and  safe,  and  communicated  that  idea  to  Bullard,  he,  Bullard,  was 
not  personally  liable."  These  charges  were  excepted  to  by  plaintiff's 
counsel.  These  were  requests  to  charge  on  the  part  of  the  defendants 
acceded  to  by  the  judge.  Some  of  them  should  properly  have  been 
somewhat  qualified  and  explained,  and  are  therefore  liable  to  some 
criticism.  But  we  must  look  at  the  whole  charge,  and  judge  of  it 
from  its  whole  scope,  and  if,  taking  it  all  together,  it  presented  the 
questions  of  law  fairly  to  the  jury  so  as  not  to  mislead  them,  ex- 
ceptions to  separate  propositions  in  it,  or  to  detached  portions  of  it, 
will  not  be  upheld.  As  said  by  Chief  Judge  Church,  in  Caldwell  v. 
New  Jersey  Steamboat  Co.,  47  IST.  Y.  282,  "  If  the  charge  as  a 
whole  conveyed  to  the  jury  the  correct  rule  of  law,  on  a  given  ques- 
tion, the  judgment  will  not  be  reversed  although  detached  sentences 
may  be  erroneous ;  and  if  the  language  employed  is  capable  of  different 
constructions,  that  construction  will  be  adopted  which  will  lead  to 
an  affirmance  of  the  judgment,  unless  it  fairly  appears  that  the  jury 
were,  or  at  least  might  have  been,  misled." 

The  judge  in  his  charge  submitted  the  whole  question  of  negligence 
to  the  jury.  He  charged  that  the  defendants  were  liable  for  the  omis- 
sion of  such  care  as  men  of  ordinary  prudence  engaged  in  the  use  of 
such  a  steam-boiler  in  such  business  would  exercise,  and  that  they 
were  liable  for  any  imperfections  in  the  boiler,  which  contributed  to 
the  explosion,  which  were  known  to  them;  but  that  if  the  explosion 
was  caused  by  the  cold  shut  in  the  head  of  the  boiler  which  was  im- 
perceptible to  the  defendants  or  undiscoverable  on  examination  or 
by  the  application  of  known  tests,  they  were  not  liable.  He  charged 
the  jury  fully  in  reference  to  the  leakage  of  the  boiler,  and  his  charge 
upon  tliat  subject  was  fully  as  favorable  to  the  plaintiff  as  he  could 
claim.  He  called  the  attention  of  the  jury  to  all  tlie  facts  connected 
with  it  and  to  what  Goddard  had  told  Bullard  aliout  it,  and  stated 
to  them  that  they  had  a  right  to  say,  from  all  the  facts,  whether  or 
not  Bullard  was  chargeable  with  negligence  in  the  use  of  the  boiler, 
undf-r  tlu'  rircumstancos.  T  iliink,  from  the  charge  as  made,  the 
jury  could  not  have   failed   io  understand  that  the  defendants  were 


CHAP.    XIX.]  ESCAPE  OF  DANGEROUS  THINGS.  619 

to  be  held  liable  for  any  defects  in  the  manufacture  of  the  boiler 
which  they  knew  or  ought  to  have  known,  and  for  any  negligence  in 
the  use  of  the  boiler  which  could  be  attributed  to  them. 

The  plaintiff  requested  the  court  to  charge  "  that  the  defendants 
cannot  excuse  or  justify  themselves  in  the  use  of  the  boiler  in  ques- 
tion, on  the  ground  that  the  same  was  purchased  of  reputable  manu- 
facturers." This  the  judge  refused  to  charge  and  the  plaintiff  ex- 
cepted. The  principle  of  law  involved  in  this  request  was  fairly 
covered  by  the  charge  as  made,  and  yet  it  may  well  be  doubted 
whether  the  judge  would  have  been  justified  in  charging  in  the 
language  of  the  request.  The  fact  that  the  defendants  bought  the 
boiler  of  reputable  manufacturers  was  one  of  the  facts  tending  to  a 
justification  which  the  jury  were  to  consider.  It  was  not  of  itself 
a  conclusive  justification,  and  the  judge  did  not  charge  that  it  was. 
If  he  had  refused  to  charge  that  they  could  not  justify  on  the  sole 
ground  that  they  had  purchased  it  of  reputable  manufacturers,  it 
would  have  been  error.  A  charge  in  the  very  language  of  the  request 
might  have  misled  the  jury  by  taking  from  their  consideration  the 
fact  that  the  boiler  was  bought  from  reputable  manufacturers  upon 
whose  judgment,  skill  and  integrity  the  defendants  had  the  right  to 
place  some  reliance. 

I  have,  therefore,  reached  the  conclusion  that  no  error  was  com- 
mitted upon  the  trial  of  this  action,  and  it  follows  that  the  order  of 
the  General  Term  must  be  reversed,  and  the  judgment  entered  upon 
the  verdict  must  be 

Affirmed,  with  costs. 


WILSON"  V.  NEW  BEDFOED. 

Supreme  Court  of  Massachusetts,  October,  1871.     108  Mass.  261. 

The  case  is  stated  in  the  opinion  of  the  court. 

Chapman,  C.  J.  The  act  of  1863,  c.  163,  for  supplying  the  city 
of  New  Bedford  with  pure  water,  grants  authority  to  the  city  to 
exercise  the  right  of  eminent  domain  by  taking  the  land  and  streams 
therein  named,  erecting  dams  and  laying  water  pipes.  By  §  6,  the 
city  is  made  liable  to  pay  all  damages  that  shall  be  sustained  by  any 
persons  in  their  property  by  the  taking  of  land,  water  or  water  rights, 
or  by  the  construction  of  any  dams,  aqueducts,  reservoirs,  or  other 
works  for  the  purposes  of  the  act.  This  provision  is  in  conformity 
with  the  tenth  article  of  the  Declaration  of  Rights;  and  both  the 
grant  of  authority  and  the  obligation  to  make  compensation  are  to 
have  a  reasonable  interpretation. 

The  city  has  taken  the  stream  mentioned  in  the  petition,  and 
erected  a  dam  across  it,  thereby  creating  a  reservoir.     The  petitioner 


620  WILSON    V.    NEW    BEDFORD.  [CHAP.    XIX. 

alleges  that  this  reservoir  has  caused  damage  to  him  by  reason  of 
the  percolation  of  water  from  the  reservoir,  underground,  to  his 
house  cellar  and  barn  cellar,  about  a  thousand  feet  distant  from  the 
dam,  and  alongside  of  it,  and  preventing  the  natural  passage  of 
water  underground  into  the  natural  stream  on  which  the  dam  is 
constructed.  The  respondents  contend  that  they  are  not  liable  to 
make  compensation  for  an  injury  of  this  character. 

It  is  true  that  the  rights  of  neighboring  proprietors  of  lands  in 
underground  waters  which  remain  still,  or  naturally  percolate  through 
the  soil  without  forming  channels,  are  very  different  from  their 
rights  in  watercourses.  The  percolating  water  belongs  to  the  owner 
of  the  land,  as  much  as  the  land  itself,  or  the  rocks  and  stones  in  it. 
Therefore  he  may  dig  a  well,  and  make  it  very  large,  and  draw  up 
the  water,  by  machinery  or  otherwise,  in  such  quantities  as  to  supply 
aqueducts  for  a  large  neighborhood.  He  may  thus  take  the  water 
which  would  otherwise  pass  by  natural  percolation  into  his  neighbor's 
land,  and  draw  off  the  water  which  may  come  by  natural  percolation 
from  his  neighbor's  land;  and  his  neighbor  may,  by  a  wall  or  other 
obstruction,  retain  the  water  which  is  upon  his  own  land,  and  pre- 
vent the  water  from  coming  into  his  soil.  This  principle  was  dis- 
cussed in  Greenleaf  v.  Francis,  18  Pick.  117;  and  afterwards  in 
Chasemore  v.  Richards,  7  H.  of  L.  Cas.  349;  and  also  in  several 
other  cases  in  England  and  this  country.  But  the  present  case  is  of 
a  different  character.  The  respondents  have  so  raised  their  dam  and 
reservoir  as  to  cause  an  artificial  pressure  of  the  water  through  the 
soil,  and  by  its  action  it  has  flooded  the  petitioners  cellars.  Prob- 
ably it  cannot  be  ascertained  precisely  how  it  acts  underground. 

In  this  Commonwealth,  complaints  under  our  mill  acts  have  for 
many  years  presented  cases  quite  similar  to  this.  Lands  are  over- 
flowed by  mill  ponds,  and  instead  of  an  action  at  common  law  a 
process  is  provided  by  statute  for  the  recovery  of  damages,  quite 
similar  to  the  process  in  this  case.  The  question  what  kind  of  dam- 
ages should  be  estimated  has  been  discussed  and  settled  in  several 
cases.  In  Monson  &  Brimfield  Manufacturing  Co.  v.  Fuller,  15  Pick. 
554,  it  was  decided  that  damages  occasioned  by  the  percolation  of 
water  through  the  earth  from  the  pond  to  neighboring  uplands,  and 
causing  them  to  produce  poorer  grass,  or  a  smaller  quantity  of  grass, 
could  be  recovered.  In  Fuller  v.  Chicopce  Manufacturing  Co.,  16 
Gray,  46,  it  was  decided  that  damages  occasioned  by  raising  the 
pond,  so  as  to  affect  injuriously  the  water  of  the  plaintiff's  well,  were 
recoverable;  and  no  distinction  was  made  as  to  whether  it  affected 
the  well  by  overflowing  or  percolation.  This  principle  is  just;  for 
the  water  often  injures  land  which  it  never  overflows;  and  where 
the  soil  is  porous,  the  water  may  ])y  percolation  render  a  dwelling 
house  uninhal)ilal)lc,  or  destroy  the  value  of  large  tracts  of  land. 
Upon  the  same  principle,  it  was  held  in  Ball  v.  Nye,  99  Mass.  582, 


CHAP.    XIX.]  ESCAPE  OF  DANGEROUS  THINGS.  621 

that  it  was  actionable  to  cause  filthy  water  to  percolate  from  the  de- 
fendant's vault  through  his  own  soil  and  thence  into  his  neighbor's 
soil,  and  thus  injure  his  neighbor's  well  and  cellar.  In  Pixley  v. 
Clark,  35  N.  Y.,  520,  the  same  principle  was  held  in  regard  to  water 
which  percolates  through  the  banks  of  a  reservoir  created  by  erect- 
ing a  dam  across  a  stream,  and  damages  the  plaintiff's  land.  Rylands 
V.  Fletcher,  Law  Rep.  3  H.  of  L.  330,^  affirming  the  decision  of  the 
Exchequer  Chamber,  states  the  same  principles,  in  application  to  a 
reservoir  created  artificially,  from  which  the  water  flowed  through 
some  passages  apparently  filled  up,  and  long  disused,  into  the  plain- 
tiff's mine.  Lord  Cranworth,  in  delivering  his  opinion,  said :  "  If  a 
person  brings  or  accumulates  on  his  land  anything  which,  if  it  should 
escape,  may  cause  damage  to  his  neighbor,  he  does  so  at  his  peril. 
If  it  does  escape  and  cause  damage,  he  is  responsible,  however  care- 
ful he  may  have  been,  and  whatever  precautions  he  may  have  taken 
to  prevent  the  damage."  He  distinguishes  between  natural  percola- 
tions and  that  which  is  caused  artificially.  On  this  point  he  says: 
"  If  water  naturally  rising  in  the  defendant's  land  had  by  percola- 
tion found  its  way  down  to  the  plaintiff's  mine  through  the  old 
workings,  and  so  had  impeded  his  operations,  that  would  not  have 
afforded  him  any  ground  of  complaint."  "  But  that  is  not  the  real 
state  of  the  case.  The  defendants,  in  order  to  effect  an  object  of 
their  own,  brought  on  to  their  land,  or  on  to  land  which  for  this 
purpose  may  be  treated  as  being  theirs,  a  large  accumulated  mass  of 
water,  and  stored  it  up  in  a  reservoir.  The  consequence  of  this  was 
damage  to  the  plaintiff,  and  for  that  damage,  however  skilfully  and 
carefully  the  accumulation  was  made,  the  defendants,  according  to 
the  principles  and  authorities  to  which  I  have  adverted,  were  certainly 
responsible." 

The  cases  cited  from  Vermont  are,  to  some  extent,  in  apparent  con- 
flict with  these  authorities.  They  do  not  seem  to  distinguish,  as  these 
authorities  do,  between  natural  and  artificial  causes  of  injury.  We 
think  the  petitioner's  claim  is  not  only  sustained  by  authority,  but 
is  founded  on  justice.  He  ought  to  be  compensated  for  such  an  injury 
as  the  petition  describes,  and  the  law  would  be  defective  if  it  failed 
to  give  him  a  remedy. 

Case  to  stand  for  trial. 

»    Ante,  p.  602. 


PART  III. 

CHAPTEE    XX. 

COMMON  ASPECTS  OF  THE  SPECIFIC  TORTS. 

1.  Consent. 

SHINGLEMEYER  v.  WRIGHT. 

Supreme  Court  of  Michigan,  May,  1900.     124  Mich.  230. 

Action  for  slander  and  false  imprisonment.  There  was  evidence 
for  the  plaintiff  that  she  went  to  the  defendant's  office  and  that  the 
defendant  there  charged  her  with  larceny  of  his  bicycle;  that  she 
telephoned  several  times  to  the  police  station  and  asked  that  an 
officer  be  sent  over;  that  no  officer  was  sent  from  the  police  station 
and  the  plaintiff  left  the  defendant's  office  and  went  down  the  ele- 
vator, and  near  the  door  met  a  policeman  whom  she  brought  back  to 
the  defendant's  office;  that  she  told  the  officer  that  the  defendant 
had  accused  her  of  stealing  his  wheel,  and  that  she  wanted  to  see 
whether  he  could  do  so;  that  upon  the  plaintiff's  return  to  the  de- 
fendant's office  with  the  officer,  the  plaintiff  asked  the  defendant  to 
repeat  his  statement.  The  plaintiff's  evidence  further  tended  to  show 
that  the  defendant  did  accuse  her  of  stealing  his  wheel  in  the  officer's 
presence;  that  thereupon  the  officer  told  her  that  she  had  to  go  along 
with  him.  The  plaintiff  was  subsequently  released  from  arrest.  The 
evidence  for  the  defendant  was  upon  all  material  questions  opposed 
to  that  of  the  plaintiff.  There  was  a  verdict  for  the  plaintiff,  and  the 
defendant  brings  a  writ  of  error. 

Long,  J.  .  .  .  [after  stating  the  facts  and  discussing  questions  of 
pleading  and  evidence  the  court  proceeded:]  In  regard  to  the  state- 
ment by  defendant  in  the  presence  of  the  officer  Henry,  it  was  not  a 
publication  for  which  the  law  gives  a  remedy.  She  herself  solicited 
the  statement,  and  sent  for  the  officer  for  the  express  purpose  of  having 
the  defendant  repeat  the  statement  in  his  presence.  It  would  not  have 
been  stated  to  him  except  by  her  invitation.  She  might  have  left 
the  defendant's  office.  She  waited  some  time  for  the  officer  to  come, 
and  then  left,  and,  meeting  the  officer  as  she  emerged  from  the 
building,  came  back  with  him  for  no  other  purpose  than  to  ask  him 
to  ropr-at  the  statement  in  his  presence.  In  Christman  v.  Christman, 
30  III.  App.  507,  plaintiff  was  suspected  of  an  nssault  with  intent  to 
nninlcr.     The  defendant  suspected   the  plaintiff,   and   so   stated  to 


CHAP.    XX.]  COMMON    ASPECTS.  623 

an  officer.  Plaintiff  took  one  King  with  him,  and  went  to  defend- 
ant's house.  King  asked  her,  in  the  presence  of  plaintiff,  if  she  had 
any  idea  who  did  it,  to  which  defendant  replied :  "  There  is  only  two 
mean  enough  to  do,  it,  and  Johnnie  is  one  of  them.  Johnnie  is  the 
only  one  that  would  do  it,  and  he  is  the  one  that  did  do  it."  Held 
that  plaintiff  could  not  recover. 

Where  one  received  a  letter  containing  libellous  statements,  and 
himself  read  the  letter  to  others,  held  that  he  could  not  recover. 
Sylvis  V.  Miller,  96  Tenn.  94.  There  is  no  difference  in  principle 
between  reading  a  letter  to  another  and  soliciting  a  person  to  make 
a  similar  verbal  statement. 

Where  one  sought  from  the  superintendent  of  a  railroad  company 
a  letter  of  recommendation  for  his  friend,  which  letter  was  given, 
containing  a  statement  that  the  person  had  left  the  service  of  the 
company  during  a  strike,  held  that  this  was  not  publishing  a  libel. 
Kansas  City,  etc.,  E.  Co.  v.  Delaney,  102  Tenn.  289.  The  following 
cases  sustain  the  same  doctrine;  Irish-American  Bank  v.  Bader,  59 
Minn.  329;  Heller  v.  Howard,  11  HI.  App.  554;  Fonville  v.  McNease, 
1  Dud.  (S.  C.)  303;  King  v.  Waring,  5  Esp.  13;  Smith  v.  Wood,  3 
Camp.  323 ;  Haynes  v.  Leland,  29  Me.  233. 

Plaintiff  repeatedly  testified  that  she  sent  for  the  policeman  to  see 
if  she  did  steal  his  wheel,  and  that  she  was  going  to  make  him  prove 
it.     The  maxim,  "  Volenti  non  fit  injuria,"  applies. 

[The  court  held  there  was  no  false  imprisonment  by  the  defendant 
or  by  his  direction.] 

The  other  Justices  concurred. 

Judgment  reversed  and  no  new  trial  ordered. 


GOLDNAMER  v.  O'BRIEX. 

Court  of  Appeals  of  Kentucky,  January,  1896.     98  Ky.  569. 

The  case  is  stated  in  the  opinion. 

Hazelbigg,  J.  The  appellants  were  sued  by  the  appellee,  Sallie 
O'Brien,  for  inducing  her  to  submit  to  an  attempted  abortion  on  her 
person  by  a  physician  procured  by  them,  and  Judgment  was  rendered 
for  $1,700. 

If  we  assume  from  the  proof  that  the  appellants  did  in  any  way 
induce  the  appellee  to  resort  to  this  method  of  hiding  lier  shame,  and 
they  deny  this  most  earnestly,  it  is  clear  from  the  testimony  that  she 
left  her  home  in  Elizabethtown  and  went  to  Louisville  in  search  of 
this  relief  voluntarily,  and  alike  voluntarily  submitted  herself  to  the 
treatment  of  a  physician. 

Her  pregnancy  was  not  attributable  to  either  of  the  appellants  and, 
at  most,  they  may  have  urged  the  Louisville  trip  as  the  only  means 


624  GOLDXAMEE   V.    o'bRIEN.  [CHAP.    XX. 

of  securing  the  desired  result,  and  may  have  furnished  money  and 
otherwise  assisted  the  plaintiff  in  the  accomplishment  of  her  purpose. 
While  it  is  not  directly  shown  that  either  of  them  employed  or  other- 
wise procured  the  physician,  and  such  a  conclusion  is  based  on  the 
barest  inference,  yet  this  question  is  properly  submitted  to  the  jury, 
and  we  shall  assume  such  a  state  of  fact. 

Waiving  other  questions,  the  important  one  in  this  appeal  is,  can 
the  plaintiff  maintain  this  action?  Or  rather,  as  the  petition  avers 
an  abduction  and  an  attempted  abortion,  against  the  plaintiff's  will 
and  consent,  the  question  is,  is  she  entitled  to  a  judgment  upon  the 
state  of  fact  thus  assumed  to  exist,  and  apparently  found  to  exist  by 
the  jury?  The  right  to  recover  is  of  course  clear  unless  it  is  destroyed 
by  the  complainant's  consent  to  the  assault,  and  whether  this  affects 
the  right  is  a  question  of  much  conflicting  authority. 

It  may  be  stated  generally  that  the  suit  of  a  wrongdoer  will  be 
rejected  when  seeking  redress  for  another's  having  participated  with 
him  in  the  wrong.  Thus  a  woman  who  immorally  yields  to  her 
seducer  cannot  sue  because  she  consented  to  and  participated  in  the 
wrong  whereof  she  complains.  Bishop  on  Non-contract  Law,  section 
57;  Cline  &  Co.  v.  Templeton,  78  Ky.  550.  The  author  last  quoted 
further  says  (section  196)  that  "rape,  one  of  the  most  aggravated 
batteries,  is,  if  the  woman  consents,  neither  rape  nor  even  assault," 
and  that  "  the  execution  of  any  unlawful  contract  places  it  past  annul- 
ment, and  leaves  no  right  of  action  in  either  party  against  the  other. 
So  that,  though  a  mutual  beating  by  consenting  parties  is  a  wrong 
against  the  public,  because  a  breach  of  the  peace,  it  is  not  such  as 
between  themselves;  since  neither  can  complain  of  that  to  which  he 
consented."  And  the  learned  author  after  citing  a  number  of  Ameri- 
can and  English  cases  to  sustain  the  text  adds :  "  Such  is  the  dis- 
tinct and  inevitable  deduction  of  the  reasoning  of  the  law;  applica- 
ble, however,  in  all  its  consequences,  only  where  the  beating  was  not 
in  excess  of  the  consent.  But  we  have  American  cases  in  which  the 
judges  have  overlooked  the  distinctions  between  the  civil  and  criminal 
remedy,  and  so  have  held  that  one  may  maintain  his  civil  suit  for  a 
battery  to  which  he  consented  and  in  which  he  participated.  Deci- 
sions like  these,  proceeding  on  a  misapprehension,  and  overlooking 
established  law  not  brought  to  the  notice  of  the  judges,  should  not 
be  followed  in  future  cases." 

To  the  same  effect  Mr.  Roscoe  says  (1  Eos.  Cr.  Ev.,  306):  "In 
consequence  of  the  natural  desire  not  to  permit  a  flagrant  act  of 
immorality  to  go  unpunished,  an  attempt  has  frequently  been  made 
to  treat  that  as  an  assault  which  is  consented  to  on  the  part  of  the 
person  who  is  the  subject  of  the  act.  But  on  examination  it  will  be 
found  that  there  is  no  authority  for  such  a  position." 

The  author  cites  numerous  authorities  supporting  the  text,  but 
points  out  that  not  every  act  of  submission  implies  consent.     Thus. 


CHAP.    XX.]  COMMON"   ASPECTS.  625 

from  the  mere  submission  of  a  child  or  person  of  weak  mind,  consent 
is  not  necessarily  to  be  presumed.  In  the  case  at  l)ar,  however,  it 
would  be  too  much  to  say  that  the  act  of  the  complainant  was  not 
willingly  and  intentionally  done. 

In  1  Wait's  Actions  and  Defenses  (page  344,  section  11)  it  is 
said :  "  An  assault  implies  force  upon  one  side,  and  repulsion,  or,  at 
least,  want  of  assent  on  the  other.  An  assault  upon  a  consenting 
party  would,  therefore,  be  a  legal  absurdity." 

On  the  other  hand,  Mr,  Cooley,  in  his  work  on  Torts  (page  163), 
says :  "  Consent  is  generally  a  full  and  perfect  shield  when  that  is 
complained  of  as  a  civil  injury  which  was  consented  to.  A  man 
cannot  complain  of  a  nuisance,  the  erection  of  which  was  concurred 
in  or  countenanced.  .  .  .  But  in  a  case  of  a  breach  of  the  peace  it 
is  different.  The  State  is  wronged  by  this,  and  forbids  it  on  public 
grounds.  If  men  fight,  the  State  will  punish  them.  If  one  is  in- 
jured, the  law  will  not  listen  to  an  excuse  based  on  a  breach  of  the 
law.  .  .  .  The  rule  of  law  is,  therefore,  clear  and  unquestionable  that 
consent  to  an  assault  is  no  justification."  And  one  wounded  in  a 
duel  is  said  by  the  learned  author  to  have  a  cause  of  action  for 
damages  against  his  adversary,  for  a  consent  which  the  law  forbids 
cannot  be  accepted  as  a  legal  protection.  Some  of  the  cases  cited  by 
the  author,  however,  are  criminal  prosecutions,  but  others  support  the 
text. 

These  authorities  seem  to  be  irreconcilable.  "WTiile  we  readily 
appreciate  the  argument  that,  so  far  as  the  State  is  concerned,  no 
consent  can  be  pleaded  in  justification,  we  have  not  been  able  to  under- 
stand how,  in  a  civil  suit,  in  which  the  party  consenting  alone  is  in- 
terested, compensation  can  be  allowed  by  the  law.  If  both  parties 
to  the  action  are  violators  of  the  law,  must  the  mouth  of  one  be  closed 
and  the  complaint  of  the  other  heard?  The  parties  stand  on  an 
exact  equality  before  the  law,  and,  if  one  wrongfully  consented  to 
beat  another,  the  otlier  has  wrongfully  consented  to  be  beaten. 

In  a  late  work  on  this  subject  it  is  said :  "  Harm  suffered  by  con- 
sent is  not,  in  general,  the  basis  of  a  civil  action.  ...  If  the  defend- 
ant is  guilty  of  no  wrong  against  the  plaintiff  except  a  wrong  invited 
and  procured  by  the  plaintiff  for  the  purpose  of  making  it  the  founda- 
tion of  an  action,  it  would  be  most  unjust  that  the  procurer  of  the 
wrongful  act  should  be  permitted  to  profit  by  it."  1  Jaggard  on 
Torts,  199. 

In  Duncan  v.  Commonwealth,  6  Dana,  295  (1838),  the  defend- 
ant, to  an  indictment  for  an  affray,  pleaded  a  former  conviction 
under  an  indictment  for  an  assault  and  battery,  and  this  court  said: 
"  As  an  affray  is  a  disturbance  of  the  public  peace  by  a  fighting  with 
the  mutual  consent  of  the  combatants,  it  would  be  intrinsically  im- 
probable that  a  conviction  for  an  assault  and  battery  —  which  would 
not  be  authorized  unless  there  had  been  a  trespass  without  the  consent 


626  CAMPBELL   V.   EACE.  [CHAP.   5X. 

of  the  person  injured  —  had  been  adjudged  as  a  punishment  for  an 
act  which  should  be  deemed  an  affray." 

And  while  in  that  case  and  the  quotation  from  Eoscoe  as  well,  the 
law  in  criminal  cases  was  being  considered,  and  the  rule  as  laid  down 
is  not  now  followed,  the  authority  strongly  tends  to  support  the  prin- 
ciple that  at  least  the  party  consenting  to  the  injury  cannot  profit  by 
his  wrongful  act. 

The  instruction,  therefore,  asked  by  the  appellants  that  if  the  plain- 
tiff voluntarily  went  to  Louisville  for  the  purpose  of  having  the 
alleged  abortion  performed  on  her,  the  law  was  for  the  defendants, 
should  have  been  given. 

Judgment  reversed  for  proceedings  consistent  with  this  opinion. 


2.  Justification. 
CAMPBELL  V.  EACE. 

Supreme  Court  of  Massachusetts,  September,  1852.     7  Cush.  408. 

This  was  an  action  of  trespass  for  breaking  and  entering  the 
plaintiff's  close  in  the  town  of  Mount  Washington,  and  was  tried  in 
the  Court  of  Common  Pleas,  before  Byington,  J.  The  defendant 
pleaded  the  general  issue,  and  specified  in  defence  a  right  of  way 
of  necessity,  resulting  from  the  impassable  state  of  the  adjoining 
highway,  by  obstructions  with  snow. 

The'  defendant  introduced  evidence  that  at  the  time  when  the 
trespass  was  alleged  to  have  been  committed  he  was  travelling  with 
his  team  on  a  highway  running  east  and  west,  which  led  to  and  inter- 
sected a  highway  running  north  and  south,  which  latter  highway  led 
to  and  intersected  another  highway,  on  which  the  defendant  had  oc- 
casion to  go  with  his  team ;  and  the  usual,  proper,  and  only  mode  of 
getting  on  which,  by  a  highway,  was  by  passing  over  the  two  high- 
ways first  named,  when  they  were  in  a  condition  fit  for  travel;  but 
at  the  time  of  the  alleged  trespass,  they  were  both  obstructed,  and 
rendered  impassable  by  snow-drifts;  liecause  of  which  obstructions, 
the  defendant  turned  out  of  the  first  highway  with  his  team,  at  a 
place  where  it  was  rendered  imp;issn1)]e  as  aforesaid,  and  passed  over 
the  adjoining  fields  of  the  plaintiff,  doing  no  unnecessary  damage,  and 
returned  into  the  second  highway,  as  soon  as  he  had  passed  the  ob- 
ptructions  which  rendered  both  impassable.  And  he  contended,  that 
the  highways  being  thus  rendered  impassable,  he  had  a  way  of  neces- 
sity over  the  plaintiff's  adjoining  fields,  or  that  his  so  passing  was 
excusable,  and  not  a  trespass. 

T>i\i  the  judge  ruled,  that  these  facts  constituted  no  defence  to  the 


CHAP.    XX.]  COMMON    ASPECTS.  627 

action ;  and  a  verdict  having  been  returned  accordingly  for  the 
plaintiff,  the  defendant  alleged  exceptions. 

BiGELOw,  J.  It  is  not  controverted  by  the  counsel  for  the  plain- 
tiff, that  the  rule  of  law  is  well  settled  in  England,  that  where  a 
highway  becomes  obstructed  and  impassable  from  temporary  causes, 
a  traveller  has  a  right  to  go  extra  viam  upon  adjoining  lands,  with- 
out being  guilty  of  trespass.  The  rule  is  so  laid  down  in  the  ele- 
mentary books.  2  Bl.  Com.  36 ;  Woolrych  on  Ways,  50,  51 ;  3  Cruise 
Dig.  89 ;  Wellbeloved  on  Ways,  38 ;  and  it  is  fully  supported  by  the 
adjudged  cases.    Henn's  Case,  W.  Jones,  296;  3  Salk.  183;  1  Saund. 

323,  note  3;  Absor  v.  French,  2  Show.  28;  Young  v. ,  1  Ld. 

Eaym.  725 ;  Taylor  v.  Whitehead,  2  Doug.  745 ;  Bullard  v.  Harrison, 
4  M.  &  S.  387,  393.  Such  being  the  admitted  rule  of  law,  as  settled 
by  the  English  authorities,  it  was  urged  in  behalf  of  the  plaintiff 
in  the  present  case,  that  it  had  never  been  recognized  or  sustained 
by  American  authors  or  cases.  But  we  do  not  find  such  to  be  the 
fact.  On  the  contrary,  Mr.  Dane,  whose  great  learning  and  familiar 
acquaintance  with  the  principles  of  the  common  law,  and  their 
practical  application  at  an  early  period  in  this  commonwealth,  en- 
title his  opinion  to  very  great  weight,  adopts  the  rule,  as  declared 
in  the  leading  case  of  Taylor  v.  Whitehead,  ubi  supra,  which  he  says 
"  is  the  latest  on  the  point,  and  settles  the  law."  3  Dane  Ab.  258. 
And  so  Chancellor  Kent  states  the  rule.  3  Kent  Com.  424.  We 
are  not  aware  of  any  case  in  which  the  question  has  been  distinctly 
raised  and  adjudicated  in  this  country;  but  there  are  several  de- 
cisions in  New  York,  in  which  the  rule  has  been  incidentally  recog- 
nized and  treated  as  well  settled  law.  Holmes  v.  Seely,  19  Wend. 
507;  Williams  v.  Safford,  7  Barb.  309;  Newkirk  v.  Sabler,  9  Barb. 
652.^  These  authorities  would  seem  to  be  quite  sufficient  to  justify 
us  in  the  recognition  of  the  rule.  But  the  rule  itself  is  founded 
on  the  established  principles  of  the  common  law,  and  is  in  accord- 
ance with  the  fixed  and  uniform  usage  of  the  community.  Indeed, 
one  of  tlie  strongest  arguments  in  support  of  it  is,  that  it  has  always 
been  practised  upon  and  acquiesced  in,  without  objection,  through- 
out the  New  England  States.  This  accounts  satisfactorily  for  the 
absence  of  any  adjudication  upon  the  question,  in  our  courts,  and 
is  a  sufficient  answer  to  the  objection  upon  this  ground,  which  was 
urged  upon  us  by  the  learned  counsel  for  the  plaintiff.  When  a 
right  has  been  long  claimed  and  exercised,  without  denial  or  ob- 
jection, a  strong  presumption  is  raised,  that  the  right  is  well 
founded. 

The  plaintiff's  counsel  is  under  a  misapprehension  in  supposing 
that  the  authorities  in  support  of  the  rule  rest  upon  any  peculiar 
or  exceptional  principle  of  law.  They  are  based  upon  the  familiar 
and  well  settled  doctrine,  that  to  justify  or  excuse  an  alleged  tres- 

»  Ante,   p.  491. 


628  CAMPBELL  V.    RACE.  [CHAP.  XX. 

pass,  inevitable  necessity  or  accident  must  be  shown.  If  a  traveller 
in  a  highway,  by  unexpected  and  unforeseen  occurrences,  such  as 
a  sudden  flood,  heavy  drifts  of  snow,  or  the  falling  of  a  tree,  is  shut 
out  from  the  travelled  paths,  so  that  he  cannot  reach  his  destination, 
without  passing  upon  adjacent  lands,  he  is  certainly  under  a  ne- 
cessity so  to  do.  It  is  essential  to  the  act  to  be  done,  without  which 
it  cannot  be  accomplished.  Serious  inconveniences,  to  say  the  least, 
would  follow,  especially  in  a  climate  like  our  own,  if  this  right  were 
denied  to  those  who  have  occasion  to  pass  over  the  public  ways.  Xot 
only  would  intercourse  apd  business  be  sometimes  suspended,  but 
life  itself  would  be  endangered.  In  hilly  and  mountainous  regions, 
as  well  as  in  exposed  places  near  the  sea  coast,  severe  and  unfore- 
seen storms  not  unfrequently  overtake  the  traveller,  and  render  high- 
ways suddenly  impassable,  so  that  to  advance  or  retreat  by  the  or- 
dinary path,  is  alike  impossible.  In  such  cases,  the  only  escape  is, 
by  turning  out  of  the  usually  travelled  way,  and  seeking  an  outlet 
over  the  fields  adjoining  the  highway.  If  a  necessity  is  not  created, 
under  such  circumstances,  sufficient  to  justify  or  excuse  a  traveller,  it 
is  difficult  to  imagine  a  case  which  would  come  within  the  admitted 
rule  of  law.  To  hold  a  party  guilty  of  a  wrongful  invasion  of  an- 
other's rights,  for  passing  over  land  adjacent  to  the  highway,  under 
the  pressure  of  such  a  necessity,  would  be  pushing  individual  rights 
of  property  to  an  unreasonable  extent,  and  giving  them  a  protection 
beyond  that  which  finds  a  sanction  in  the  rules  of  law.  Such  a 
temporary  and  unavoidable  use  of  private  property,  must  be  regarded 
as  one  of  those  incidental  burdens  to  which  all  property  in  a  civilized 
community  is  subject.  In  fact,  the  rule  is  sometimes  justified  upon 
the  ground  of  public  convenience  and  necessity.  Highways  being 
established  for  public  service,  and  for  the  use  and  benefit  of  the  whole 
community,  a  due  regard  for  the  welfare  of  all  requires,  that  when 
temporarily  obstructed,  the  right  of  travel  should  not  be  in  inter- 
rupted. In  the  words  of  Lord  Mansfield,  "  it  is  for  tlie  general 
good  that  people  should  be  entitled  to  pass  in  another  line."  It  is 
a  maxim  of  the  common  law,  that  where  public  convenience  and  ne- 
cessity come  in  conflict  with  private  right,  the  latter  must  yield 
to  the  former.  A  person  travelling  on  a  highway,  is  in  the  exercise 
of  a  public,  and  not  a  private  right.  If  he  is  compelled,  by  im- 
passable obstructions,  to  leave  the  way,  and  go  upon  adjoining  lands, 
he  is  still  in  the  exercise  of  the  same  right.  The  rule  does  not, 
therefore,  violate  the  principle  that  individual  convenience  must  al- 
ways be  held  subordinate  to  private  rights,  but  clearly  falls  within 
that  maxim,  which  makes  public  convenience  and  necessity  para- 
mount. 

It  was  urgfd  in  argument  that  the  effect  of  establishing  this  rule 
of  law  would  be  to  appropriate  private  property  to  public  use  with- 
out providing  any  means  of  compensation  to  the  owner.     If  such 


CHAP.    XX.]  COMMON    ASPECTS.  629 

an  accidental;,  occasional  and  temporary  use  of  land  can  be  regarded 
as  an  appropriation  of  private  property  to  a  public  use,  entitling  the 
owner  to  compensation,  which  may  well  be  doubted,  still  the  decisive 
answer  to  this  objection  is  quite  obvious.  The  right  to  go  extra 
viam,  in  case  of  temporary  and  impassable  obstructions,  being  one  of 
the  legal  incidents  or  consequences  which  attaches  to  a  highway 
through  private  property,  it  must  be  assumed,  that  the  right  to  the 
use  of  land  adjoining  the  road  was  taken  into  consideration  and 
proper  allowance  made  therefor,  when  the  land  was  originally  ap- 
propriated for  the  highway,  and  that  the  damages  were  then  es- 
timated and  fixed,  for  the  private  injury  which  might  thereby  be 
occasioned. 

It  was  also  suggested,  that  the  statutes  of  the  commonwealth,  im- 
posing the  duty  on  towns  to  keep  public  ways  in  repair,  and  render- 
ing them  liable  for  damages  occasioned  by  defects  therein,  furnish 
ample  remedies  in  cases  of  obstructions,  and  do  away  with  the 
necessity  of  establishing  the  rule  of  the  common  law  in  this  com- 
monwealth, which  gives  the  right  in  such  cases  to  pass  over  adjacent 
lands.  But  this  is  not  so.  Towns  are  not  liable  for  damages  in 
those  cases  to  which  this  rule  of  the  common  law  would  most  fre- 
quently be  applicable  —  of  obstructions,  occasioned  by  sudden  and 
recent  causes,  which  have  not  existed  for  the  space  of  twenty-four 
hours,  and  of  which  the  towns  have  had  no  notice.  Besides;  the 
statute  liability  of  towns  does  not  extend  to  damages  such  as  would 
ordinarily  arise  from  the  total  obstruction  of  a  highway;  being  ex- 
pressly confined  to  cases  of  bodily  injuries  and  damages  to  property. 
St.  1850,  c.  5;  Canning  v.  Williamstown,  1  Cush.  451;  Harwood  v. 
Lowell,  4  Cush.  310;  Brailey  v.  Southborough,  6  Cush.  141. 

From  what  has  already  been  said,  the  limitations  and  restrictions 
of  the  right  to  go  upon  adjacent  lands  in  case  of  obstructions  in  the 
highway  can  be  readily  inferred.  Having  its  origin  in  necessity,  it 
must  be  limited  by  that  necessity;  cessante  ratione,  cessat  ipsa  lex. 
Such  a  right  is  not  to  be  exercised  from  convenience  merely,  nor 
when,  by  the  exercise  of  due  care,  after  notice  of  obstructions,  other 
ways  may  be  selected  and  the  obstructions  avoided.  But  it  is  to  be 
confined  to  those  cases  of  inevitable  necessity  or  unavoidable  accident, 
arising  from  sudden  and  recent  causes  which  have  occasioned  tem- 
porary and  impassable  obstructions  in  the  highway.  What  shall  con- 
stitute such  inevitable  necessity  or  unavoidable  accident,  must  de- 
pend upon  the  various  circumstances  attending  each  particular  case. 
The  nature  of  the  obstruction  in  the  road,  the  length  of  time  during 
which  it  has  existed,  the  vicinity  or  distance  of  other  public  ways,  the 
exigencies  of  the  traveller,  are  some  of  the  many  considerations  which 
would  enter  into  the  inquiry,  and  upon  which  it  is  the  exclusive 
province  of  the  jury  to  pass,  in  order  to  determine  whether  any 
necessity  really  existed,  which  would  justify  or  excuse  the  traveller. 


630  KIRBY    V.    FOSTER.  [CHAP.   XX. 

In  the  case  at  bar,  this  question  was  wholly  withdrawn  from  the 
consideration  of  the  jury,  by  the  ruling  of  the  court.  It  will  there- 
fore be  necessary  to  send  the  case  to  a  new  trial  in  the  court  of 
common  pleas. 

Exceptions  smtained. 


KIEBY  V.  FOSTER. 
Supreme  Court  of  Rhode  Island,  July,  1891.     17  R.  I.  437. 

The  ease  is  stated  in  the  opinion. 

Stiness,  J.  The  plaintifE  was  in  the  employ  of  the  Providence 
Warehouse  Co.,  of  which  the  defendant,  Samuel  J.  Foster,  was  the 
agent,  and  his  son,  the  other  defendant,  an  employee.  A  sum  of 
fifty  dollars  belonging  to  the  corporation  had  been  lost,  for  which 
the  plaintiff,  a  bookkeeper,  was  held  responsible,  and  the  amount 
was  deducted  from  his  pay.  On  January  20,  1888,  Mr.  Foster  handed 
the  plaintiff  some  money  to  pay  the  help.  The  plaintiff,  acting  under 
the  advice  of  counsel,  took  this  money  the  amount  due  him  at  the 
time,  including  what  had  been  deducted  from  his  pay,  put  it  into  his 
pocket,  and  returned  the  balance  to  Mr.  Foster,  saying  he  had  re- 
ceived his  pay  and  was  going  to  leave,  and  that  he  did  this  under 
advice  of  counsel.  The  defendants  then  seized  the  plaintiff  and 
attempted  to  take  the  money  from  him.  A  struggle  ensued,  in  which 
the  plaintiff  claims  to  have  received  injury,  for  which  this  suit  is 
brought.  The  jury  having  returned  a  verdict  for  the  plaintiff,  the 
defendants  petition  for  a  new  trial  on  exceptions  to  the  rulings  and 
refusals  to  rule  of  the  presiding  justice.  It  is  unnecessary  to  re- 
peat the  several  exceptions,  since  they  involve  substantially  but  one 
question,  viz.:  whether  the  defendants  were  justified  in  the  use  of 
force  upon  the  plaintiff  to  retake  the  money  from  him.  As  the  de- 
fendants only  pleaded  the  general  issue,  all  requests  relating  to 
justification  might  properly  have  been  refused  on  that  ground.  1 
Chitty  on  Pleading,  501 ;  2  Grcenlcaf  on  Evidence,  s.  92.  This  case, 
however,  having  been  tried  upon  the  defence  of  justification,  we 
will  consider  the  exceptions  as  though  that  defence  had  been  pleaded. 

The  defendants  contend  that  the  relation  of  master  and  servant 
subsisted  between  the  plaintiff  and  Samuel  J.  Foster,  the  manager  of 
the  warehouse,  whereby  possession  of  money  by  the  plaintiff'  was 
constructively  possession  by  the  manager,  acting  in  behalf  of  the 
company;  and  that  the  money  having  been  delivered  to  the  plaintiff 
for  the  specific  purpose  of  paying  the  help,  his  conversion  of  it  to 
his  own  use  was  a  wrongful  conversion  amounting  to  embezzlement, 
which  justified  the  defendants  in  using  force  in  defence  of  the  prop- 
erty  under   their  charge.     Unquestionably,   if   one  takes  another^s 


CHAP.    XX.]  COMMON    ASPECTS.  631 

property  from  his  possession  without  right  and  against  his  will,  the 
owner  or  person  in  charge  may  protect  his  possession,  or  retake  the 
property,  by  the  use  of  necessary  force.  He  is  not  bound  to  stand 
by  and  submit  to  wrongful  dispossession  or  larceny  when  he  can 
stop  it,  and  he  is  not  guilty  of  assault  in  thus  defending  his  right, 
by  using  force  to  prevent  his  property  from  being  carried  away.  But 
this  right  of  defence  and  recapture  involves  two  things :  first,  pos- 
session by  the  owner,  and,  second,  a  purely  wrongful  taking  or  con- 
version, without  a  claim  of  right.  If  one  has  intrusted  his  property 
to  another,  who  afterwards,  honestly  though  erroneously,  claims  it 
as  his  own,  the  owner  has  no  right  to  retake  it  by  personal  force. 
If  he  has,  the  actions  of  replevin  and  trover  in  many  cases  are  of 
little  use.  The  law  does  not  permit  parties  to  take  the  settlement 
of  conflicting  claims  into  their  own  hands.  It  gives  the  right  of 
defence  but  not  of  redress.  The  circumstances  may  be  exasperating; 
the  remedy  at  law  may  seem  to  be  inadequate;  but  still  the  injured 
party  cannot  be  arbiter  of  his  own  claim.  Public  order  and  the 
public  peace  are  of  greater  consequence  than  a  private  right  or  an 
occasional  hardship.  Inadequacy  of  remedy  is  of  frequent  occur- 
rence, but  it  cannot  find  its  complement  in  personal  violence.  Upon 
these  grounds  the  doctrine  contended  for  by  the  defendants  is  limited 
to  the  defence  of  one's  possession  and  the  right  of  recapture  as 
against  a  mere  wrong-doer.  It  is  therefore  to  be  noted  in  this  case 
that  the  money  was  in  the  actual  possession  of  the  plaintiff,  to 
whom  it  had  been  intrusted  for  the  purpose  of  paying  help,  who 
thereupon  claimed  the  right  to  appropriate  it  to  his  own  payment, 
supposing  he  might  lawfully  do  o.  Conceding  that  the  advice  was 
bad,  nevertheless,  upon  such  appropriation  the  plaintiff  held  the 
money  adversely,  as  his  own,  and  not  as  the  servant  or  agent  of  the 
company.  If  his  possession  was  the  company's  possession,  then  the 
company  was  not  deprived  of  its  property,  and  there  could  be  neither 
occasion  nor  justification  for  violence.  Possession  by  the  company 
would  be  constructive  merely,  which  would  cease  when  the  plaintiff 
exercised  dominion  and  control  on  his  own  behalf  under  an  honest 
claim  of  right.  It  is  only  in  this  Avay,  in  many  cases,  that  conversion 
is  established.  Having  thus  appropriated  the  money  to  himself,  it 
is  urged  that  the  act  amounted  to  embezzlement,  which  justified 
the  intervention  of  the  defendants  to  prevent  the  consummation  of 
the  crime.  We  do  not  think  this  is  so.  The  plaintiff  stated  what  he 
had  done,  and  the  grounds  upon  which  he  claimed  the  right  to  do 
it,  handing  back  the  balance  above  what  was  due  him.  A  con- 
troversy followed;  he  started  to  go  out,  but  was  stopped  by  the  de- 
fendants, and  then  the  assault  took  place.  The  sincerity  of  the 
plaintiff's  belief  that  he  had  a  right  to  retain  the  money  is  unques- 
tionable. Hence,  as  stated  in  Cluff  v.  Mutual  Benefit  Life  Insurance 
Co.  13  Allen,  308,  cited  by  the  defendants,  even  a  forcible  taking 


632  KIRBY    V.    FOSTER.  [CHAP.    XX. 

of  property,  "  if  done  under  an  honest  claim  of  right,  however  ill 
founded,  would  not  constitute  the  crime  of  robbery  or  larceny;  be- 
cause, where  a  party  sincerely,  though  erroneously,  believes  that  he 
is  legally  justified  in  taking  property,  he  is  not  guilty  of  the  felonious 
intent  which  is  an  essential  ingredient  of  these  crimes." 

In  the  most  favorable  view  of  the  case  for  the  defendants,  the 
plaintiff  having  obtained  the  money  by  no  crime,  misrepresentation, 
or  violence,  nor  against  the  will  of  its  owner,  retained  it  wrong- 
fully. In  such  cases  the  rule  is  clearly  stated  in  Bliss  v.  Johnson,  73 
N.  Y.  529 :  "  The  general  rule  is,  that  a  right  of  property  merely,  not 
joined  with  the  possession,  will  not  justify  the  owner  in  committing 
an  assault  and  battery  upon  the  person  in  possession  for  the  pur- 
pose of  regaining  possession,  although  the  possession  is  wrongfully 
withheld."  See,  also,  Harris  v.  Marco,  16  S.  Car.  575;  Barnes  v. 
Martin,  15  Wise.  240;  Andre  v.  Johnson,  6  Blackf.  Ind.  375.  In 
Commonwealth  v.  McCue,  16  Gray,  226,  it  was  held  that  an  owner  of 
cattle,  which  had  been  taken  up  by  one  who  claimed  to  be  a  field 
driver,  had  no  right  to  commit  an  assault  in  retaking  his  property, 
even  though  the  complainant  acted  only  as  an  officer  de  facto  and 
demanded  illegal  fees. 

But,  it  is  said,  the  plaintiff  was  about  to  carry  away  the  money 
against  the  will  of  the  owner.  Undoubtedly  this  was  so;  but  this  is 
true  in  every  case  of  wrongful  conversion  of  property.  If  it  be  not 
taken  against  the  will  of  the  owner,  it  cannot  be  retaken  by  force, 
but  only  by  the  usual  civil  remedy. 

The  defendants  cite  the  following  cases,  which,  it  will  be  seen, 
are  plainly  distinguishable  from  the  case  at  bar.  Blades  v.  Higgs, 
10  C.  B.  N.  S.  713.  This  was  on  demurrer  to  a  plea,  which  set  up 
that  the  plaintiff  had  possession,  wrongfully  and  against  the  will  of 
the  owner,  of  certain  property,  which  the  plaintiff  was  about  to 
carry  away.  The  plea  was  held  to  be  a  good  justification  for  neces- 
sary force,  upon  the  assumed  ground  that  the  defendants  had  actual 
possession  of  the  chattels,  which  the  plaintiff  took  against  their  will. 
In  Johnson  v.  Perry,  56  Vt.  703,  and  Gyre  v.  Culver,  47  Barb.  S.  C. 
592,  there  was  no  claim  of  right  on  the  part  of  the  plaintiff  to  the 
property  he  had  taken.  In  Hodgeden  v.  Hubbard,  18  Vt.  504,  the 
plaintiff  obtained  the  property  by  false  representations.  Baldwin  v. 
Hayden,  6  Conn.  453,  apparently  sustains  the  defendant's  contention 
that  an  owner  has  a  right  to  retake  property  intrusted  to  another, 
if  he  is  about  to  carry  it  away;  yet  it  does  not  appear  in  that  case 
that  the  defendant  made  any  claim  of  title  to  the  paper  in  ques- 
tion, only  that  he  supposed  he  had  permission  to  take  it  away.  State 
V.  Elliott,  11  N.  H.  540,  is  in  the  same  line,  but  extremely  guarded 
in  expression.  It  appears  to  have  been  a  very  slight  assault,  which 
the  court  was  quite  willing  to  justify,  without  consideration  of  au- 
thorities.    But  the  court  says  the  right  of  recapture  of  property  is 


CILVr.   XX.]  COMMON   ASPECTS.  633 

far  more  limited  than  that  of  its  defence,  and  recognizes  the  ques- 
tion whether  the  person  removing  it  is  a  mere  wrong-doer,  as  one  of 
the  questions  to  be  determined. 

The  defendants  object  to  the  charge  of  the  court,  that  where  a 
person  has  come  into  the  peaceable  possession  of  a  chattel  from  an- 
other, the  latter  has  no  right  to  retake  it  by  violence,  whether  the 
possession  is  lawful  or  unlawful,  upon  the  ground  that  this  rule 
would  prevent  the  recapture  of  property  obtained  by  trickery  or 
fraud.  The  instruction  must  be  considered  not  as  an  abstract  propo- 
sition, but  with  reference  to  the  case  l)efore  the  jury.  Nothing  ap- 
peared to  show  that  the  money  had  been  procured  by  misrepresenta- 
tion, trickery,  or  fraud.  It  was  delivered  to  the  plaintiff  voluntarily, 
in  the  usual  course  of  business.  True,  under  the  advice  of  a  lawyer 
whom  he  had  consulted,  the  plaintiff  had  previously  determined  to 
apply  the  money  to  his  own  payment  when  he  should  receive  it;  but 
this  did  not  make  the  delivery  itself  fraudulent,  nor  did  his  intent 
to  assert  what  he  believed  to  be  his  right  make  that  intent  criminal. 
We  think,  therefore,  with  reference  to  the  case  as  it  stood,  there  was 
no  error  in  the  charge  as  given,  nor  in  the  refusals  to  charge  as  re- 
quested. 

Exceptions  overruled. 


SCEIBNER  V.  BEACH. 

Supreme  Court  of  New  York,  1847.     4  Denio,  448. 

Trespass  for  assault  and  battery.  Plea,  not  guilty,  with  notice  of 
*'  son  assault  demesne,"  and  that  the  assault  was  committed  in  de- 
fence of  defendant's  property. 

It  appeared  that  the  affair  which  gave  rise  to  the  action  happened 
in  August,  1842,  on  a  piece  of  land  in  Catskill,  of  which  the  de- 
fendant had  been  in  possession  about  three  years  before.  He  re- 
moved to  Herkimer  county,  and  the  plaintiff  succeeded  to  the  oc- 
cupancy of  the  land,  and  had  burned  a  coal-pit  upon  it,  and  was 
engaged  in  taking  the  coal  to  market.  While  he  was  absent  for  that 
purpose,  the  defendant  came  to  the  pit  and  began  to  take  out  the  coal 
with  a  rake  he  found  there,  having  a  wagon  in  readiness  to  take  the 
coal  away.  While  thus  engaged  the  plaintiff  came  there  and  asked 
the  defendant  what  he  was  doing.  Defendant  said  if  he  came  there 
he  would  show  him.  Upon  this  the  plaintiff  took  hold  of  the  rake 
with  a  view  of  taking  it  from  the  defendant,  who,  letting  go  with  one 
hand,  knocked  the  plaintiff  down.  As  he  arose  he  again  took  hold 
of  the  rake,  but  the  defendant  pulled  it  away,  and  aimed  a  blow 
with  it  at  the  plaintiff's  head,  which  the  latter  sought  to  stop  by 
putting  up  his  hand.  The  rake  struck  his  arm  near  the  wrist  and 
broke  the  bone. 


634  SCRIBNEll    V.    BEACii.  [(JiiAl*.    XX. 

The  defendant  offered  to  show  that  he  had  title  to  the  land 
upon  which  the  coal-pit  was  burned,  which  was  uncultivated  and 
unimproved;  and  that  the  coal  was  made  from  his  wood  cut  upon 
the  land.  The  plaintiff's  counsel  objected  to  this  evidence,  and  the 
objection  was  sustained.  Verdict  for  the  plaintiff  for  $150.  The 
defendant  moves  for  a  new  trial. 

Jew^ett,  J.  Self-defence  is  a  primary  law  of  nature,  and  it  is 
held  an  excuse  for  breaches  of  the  peace  and  even  for  homicide  it- 
self. But  care  must  be  taken  that  the  resistance  does  not  exceed 
the  bounds  of  mere  defence,  prevention,  or  recovery,  so  as  to  become 
vindictive;  for  then  the  defender  would  himself  become  the  ag- 
gressor. The  force  used  must  not  exceed  the  necessity  of  the  case. 
Elliott  V.  Brown,  2  Wend.  497;  Gates  v.  Lounsbury,  20  Johns.  427; 
Gregory  v.  Hill,  8  T.  E.  299;  Baldwin  v.  Hayden,  6  Conn.  453;  3 
Black.  Com.  3-5;  1  Hawk.  P.  C.  130;  Cockcroft  v.  Smith,  2  Salk. 
642;  Curtis  v.  Carson,  2  ^t.  h.  539. 

A  man  may  justify  an  assault  and  battery  in  defence  of  his 
lands  or  goods,  or  of  the  goods  of  another  delivered  to  him  to  be 
kept.  Hawk.  P.  C.  b.  1,  c.  60,  §  23 ;  Seaman  v.  Cuppledick,  Owen, 
150.  But  in  these  cases,  unless  the  trespass  is  accompanied  with 
violence,  the  owner  of  the  land  or  goods  will  not  be  justified  in  as- 
saulting the  trespasser  in  the  first  instance,  but  must  request  him  to 
depart  or  desist,  and  if  he  refuses  he  should  gently  lay  his  hands  on 
him  for  the  purpose  of  removing  him,  and  if  he  resist  with  force 
then  force  sufficient  to  expel  him  may  be  used  in  return  by  the 
owner.  Weaver  v.  Bush,  8  T.  R.  78;  Buller's  N".  P.  19;  1  East, 
P.  C.  406.  It  is  otherwise  if  the  trespasser  enter  the  close  with 
force;  .  in  that  case  the  owmer  may  without  previous  request  to 
depart  or  desist  use  violence  in  return,  in  the  first  instance,  pro- 
portioned to  the  force  of  the  trespasser,  for  the  purpose  only  of  sub- 
duing his  violence. 

"  A  civil  trespass,"  says  Holroyd,  J.,  "  will  not  justify  the  firing 
a  pistol  at  the  trespasser,  in  sudden  resentment  or  anger.  If  a 
person  takes  forcible  possession  of  another's  close,  so  as  to  be  guilty 
of  a  breach  of  the  peace,  it  is  more  than  a  trespass;  so  if  a  man 
with  force  invades  and  enters  the  dwelling-house  of  another.  But 
a  man  is  not  authorized  to  fire  a  pistol  on  every  invasion  or  intrusion 
into  his  house;  he  ought,  if  he  has  a  reasonable  opportunity,  to 
endeavor  to  remove  the  trespasser  without  having  recourse  to  the 
last  extremity."  Mead's  Case,  1  Lewis,  C.  C.  185;  Roscoe's  C.  Ev. 
262,  The  rule  is,  that  in  all  cases  of  resistance  to  trespassers,  the 
party  resisting  will  be  guilty  of  an  assault  and  battery  if  he  resists 
with  such  violence  that  it  would,  if  death  had  ensued,  have  been 
manslaughter.  Where  one  manifestly  intends  and  endeavors,  by 
violence  or  surprise,  to  commit  a  known  felony  upon  a  man's  person 
(as  to  rob  or  murder,  or  to  commit  a  rape  upon  a  woman)  or  upon 


CHAP.    XX.]  COMMON   ASPECTS.  635 

a  man's  habitation  or  property  (as  arson  or  burglary),  the  person 
assaulted  my  repel  force  by  force;  and  even  his  servant,  then  at- 
tendant on  him,  or  any  other  person  present,  may  interpose  for  pre- 
venting mischief ;  and  in  the  latter  case  the  owner,  or  any  part  of  his 
family,  or  even  a  lodger  with  him,  may  kill  the  assailant,  for  pre- 
venting the  mischief.     Foster's  Crown  Law,  273. 

The  resumption  of  the  possession  of  land  and  houses  by  the  mere 
act  of  the  party  is  frequently  allowed.  Thus  a  person  having  a 
right  to  the  possession  of  lands,  may  enter  by  force,  and  turn  out  a 
person  who  has  a  mere  naked  possession,  and  cannot  be  made  an- 
swerable in  damages  to  a  party  who  has  no  right  and  is  himself  a 
tortfeasor.  Although  if  the  entry  in  such  case  be  with  a  strong  hand 
or  a  multitude  of  people,  it  is  an  offence  for  which  the  party  en- 
tering must  answer  criminally.  Hyatt  v.  Wood,  4  Johns.  150;  Samp- 
son V.  Henry,  13   Pick.   3G. 

In  respect  to  personal  property  the  right  of  recaption  exists, 
with  the  caution  that  it  be  not  exercised  violently  or  by  breach  of 
the  peace;  for  should  these  accompany  the  act,  the  party  would 
then  be  answerable  criminally.  But  the  riot,  or  force,  would  not 
confer  a  right  on  a  person  who  had  none;  nor  would  they  subject  the 
owner  of  the  chattel  to  a  restoration  of  it  to  one  who  was  not  the 
owner.  Hyatt  v.  Wood,  supra.  In  the  case  of  personal  property  im- 
properly detained  or  taken  away  it  may  be  taken  from  the  house  and 
custody  of  the  wrongdoer  even  without  a  previous  request,  but  unless 
it  was  seized  or  attempted  to  be  seized  forcibly,  the  owner  cannot 
justify  doing  anything  more  than  gently  laying  his  hands  on  the 
wrongdoer  to  recover  it.  AYeaver  v.  Bush,  supra;  Com.  Dig.  Pleader, 
3  M.l7;  Spencer  v.  McGowen,  13  Wend.  256. 

In  one  branch  of  the  defence  the  defendant  set  up  "  son  assault 
demesne."  That  was  overthrown  by  evidence  showing  a  manifest 
disproportion  between  the  battery  given  and  the  first  assault.  Even 
a  wounding  was  proved.  The  defendant  also  relied  upon  a  defence 
of  his  possession  of  certain  personal  property,  which  he  insisted 
was  invaded  by  the  plaintiff,  and  in  the  defence  of  which  he  com- 
mitted the  assault.  To  sustain  this  defence  he  proposed  to  prove 
that  the  coal-pit  was  on  new  and  unimproved  land  to  which  he  had 
title,  and  that  the  wood  from  which  the  coal  was  made  was  cut  from 
this  land  without  any  authority  from  him ;  but  this  evidence  was 
rejected.  The  object  of  strife  between  the  parties  was  the  pos- 
session of  the  rake,  not  the  coal.  The  plaintiff  is  not  shown  to  have 
committed  a  single  act  tending  to  disturb  the  defendant  in  his  pos- 
session of  the  latter.  The  ownership  of  the  coal  tlierefore  was  not 
a  material  fact.  But  admitting  that  the  defendant  had  a  legal  title 
to  the  coal,  and  that  the  plaintiff's  object  in  regaining  possession 
of  the  rake  was  to  use  it  as  a  moans  of  retaking  the  possession  of 
the  coal,  still  the  defendant  could  not  justify  the  wounding  merely 


636  SPALDING    V.   VILAS.  [CHAP.    XX. 

in  defence  of  his  possession.  Gregory  v.  Hill,  supra.  Unless  the 
plaintiff  first  attempted  forcibly  to  take  the  coal,  of  which  there 
was  no  proof,  I  think  the  evidence  was  immaterial,  and  was  properly 
overruled. 

New  trial  denied. 


3.  Privilege. 
SPALDING  V.  VILAS. 

Supreme  Court  of  the  United  States,  October,  1895.     161  U.  S.  483. 

The  plaintiff  alleged,  in  his  declaration,  that  he  was  an  attorney- 
at-law,  and  had  been  employed  by  a  considerable  number  of  persons 
who  were  postmasters  of  the  United  States,  to  obtain  a  readjust- 
ment and  payment  of  their  salaries,  in  accordance  with  the  provisions 
of  an  act  of  Congress,  relating  thereto;  that  Congress  had  made 
appropriations  for  the  payment  of  such  claims;  that  he  had  made 
application  to  the  defendant,  who  was  Postmaster  General  of  the 
United  States,  to  adjust  and  pay  the  claims  of  said  persons;  and 
that  the  defendant  refused  so  to  do,  and,  intending  to  injure  the 
plaintiff,  had  caused  a  circular  to  be  sent  to  the  said  persons,  under 
contract  with  the  plaintiff,  in  which  circular,  the  defendant  had 
represented  that  the  services  of  an  attorney  were  unnecessary  to  col- 
lect the  claims,  and  that  contracts  or  powers  of  attorney  to  collect 
the  claims  were  null  and  void,  by  act  of  Congress;  and  that  these 
representations  were  false,  and  were  intended  by  the  defendant  to 
injure  the  plaintiff.  The  defendant  demurred  to  the  declaration; 
the  demurrer  was  sustained,  and  the  plaintiff  obtained  a  writ  of 
error. 

Mr.  Justice  Harlan  .  .  .  [After  stating  the  facts,  the  court  pro- 
ceeded :] 

The  thought  which  underlies  the  entire  argument  for  the  plain- 
tiff is  that  the  circular  issued  from  the  Post  Office  Department,  by 
direction  of  the  Postmaster  General,  was  beyond  the  scope  of  any 
authority  possessed  by  that  officer;  and,  therefore,  the  sending  of  the 
circular  to  the  persons  who  had  presented  claims  against  the  govern- 
ment was  not  justified  ])y  law,  and  would  not  protect  the  Postmaster 
General  from  responsii)ility  for  the  injury  done  to  the  plaintiff  from 
that  act. 

The  statute  of  March  3,  1883,  c.  119,  22  Stat.  487,  relating  to  the 
rcadjiLstriiont  of  the  salaries  of  postmasters  of  certain  classes,  provided 
that  every  readjustment  of  salary,  under  that  act,  should  be  upon  a 
written  application,  signed  by  the  postmaster,  or  late  postmaster, 
or  legal  representative  entitled  to  such  readjustment,  and  that  "  each 


CHAP.    XX.]  COMMON    ASPECTS.  637 

payment  made  shall  be  by  warrant  or  cheques  on  the  treasurer  or 
some  assistant  treasurer  of  the  United  States,  made  payable  to  the 
order  of  said  applicant,  and  forwarded  by  mail  to  him  at  the  post 
office  within  whose  delivery  he  resides,  and  which  address  shall  be 
set  forth  in  the  application  above  provided  for."  And,  by  the  act  of 
August  4,  1886,  c.  903,  §  8,  24  Stat.  256,  307,  308,  it  was  declared 
that  the  payment  of  all  sums  thereby  appropriated  "  shall  be  made  by 
warrants  or  cheques,  as  provided  by  the  said  act  of  March  3,  1883, 
payable  to  the  order  of  and  transmitted  to  the  persons  entitled  respect- 
ively thereto." 

Whatever  may  have  been  the  value  of  any  services  rendered  by 
the  plaintiff  for  his  clients;  even  if  the  readjustment  of  their  salaries 
was  wholly  due  to  his  efforts  "  to  procure  mandatory  legislation  by 
Congress,  pressing  such  legislation  by  all  lawful  means  in  his  power," 
through  many  years,  it  was  competent  for  the  legislative  branch  of 
the  government  to  provide  that  any  sums  ascertained  to  be  due  to 
claimants  should  be  paid  directly  to  them.  Such  a  requirement 
could  have  had  no  other  object  than  to  make  it  certain  that  the  full 
amount  due  to  those  whose  salaries  were  readjusted  was  received  by 
them  personally,  and  should  not  pass  through  the  hands  of  agents 
or  attorne3^s.  No  one  will  question  the  power  of  Congress  to  enact 
legislation  that  would  effect  such  an  object.  Ball  v.  Halsell,  161 
U.  S.  72.  If  such  legislation  worked  injury  to  the  plaintiff  in 
that  it  gave  his  clients  an  opportunity  to  evade,  for  a  time,  the  pay- 
ment of  what  they  may  have  agreed  to  allow  him,  it  was  an  injury 
from  which  no  cause  of  action  could  arise.  This  view  is  so  clear 
that  no  argument  in  its  support  is  necessary. 

It  results  that  the  Postmaster  General  not  only  had  the  right, 
but  it  was  his  duty,  to  cause  all  cheques  or  warrants,  issued  under 
the  authority  of  the  above  acts  of  Congress,  to  be  sent  directly  to 
the  claimants.  If  not  strictly  his  duty,  it  was  his  right  to  call  the 
attention  of  claimants  to  the  provisions  of  the  act  of  1883.  Of  the 
legislation  of  Congress  every  one  is  presumed  to  have  knowledge; 
but  all  know,  as  matter  of  fact,  that  the  larger  part  of  the  people 
are  not  informed  as  to  the  provisions  of  many  acts  of  Congress.  No 
one  could  rightfully  complain  that  the  Postmaster  General  called 
the  attention  of  those  having  business  with  his  Department  to  an 
act  of  Congress  that  related  to  that  business,  and  which  would  ex- 
plain why  cheques  or  warrants,  in  their  favor,  were  sent  directly  to 
them,  and  were  not  delivered  to  agents  or  attorneys. 

Nor  did  the  Postmaster  General  exceed  his  authority  when  he 
informed  claimants  that  Congress  required  cheques  or  warrants  to 
be  sent  to  them  "because  no  attorney's  services  are  necessary  to 
the  presentation  of  the  claim  before  the  Department,  and  Congress 
desired  all  the  proceeds  to  reach  the  person  really  entitled  thereto;" 
nor  when  he  stated  in  his  circular  that  "  after  a  claim  of  this  char- 


638  SPALDING   V.   VILAS.  [CHAP.    XX. 

acter  is  filed  in  the  Department,  its  examination  and  the  readjust- 
ment of  salary,  if  found  proper,  are  made  directly  from  the  books 
and  papers  in  the  Department  by  its  officers,  and  without  further 
evidence."  Was  it  not  true  that  any  claim,  under  these  acts  of  Con- 
gress must  be,  or  could  properly  be,  sustained  or  rejected  according 
to  the  evidence  furnished  by  the  records  of  the  Department?  Be- 
sides, the  statement  that  "  no  attorney's  services  were  necessary  to 
the  presentation  of  the  claim,"  if  not  strictly  accurate,  was,  at  most, 
only  an  expression  of  the  opinion  of  the  Postmaster  General  in  the 
course  of  his  official  duties.  As  he  was  charged  with  the  execution 
of  the  will  of  Congress  in  relation  to  the  readjustment  of  those 
salaries,  he  was  entitled  to  express  his  opinion  as  to  the  object  for 
which  the  act  of  1883  was  passed,  and  to  indicate  what,  in  his  judg- 
ment, was  necessary  to  be  done  in  order  to  bring  claims  under  that 
act  properly  before  the  Department.  Indeed,  the  clear  indication  in 
the  act  of  1883  of  the  desire  of  Congress  that  the  full  amount  awarded 
to  claimants  should  be  paid  directly  to  them,  rendered  it  entirely  ap- 
propriate that  he  should  advise  them  of  the  fact  that  the  records  of 
the  Department  furnished  all  the  evidence  necessary  for  the  read- 
justment directed  by  Congress.  He  did  not  by  his  circular  advise 
claimants  that  they  could  disregard  any  valid  contract  made  by 
them  with  attorneys.  Claimants  could  not  have  understood  him  as 
recommending  a  violation  of  the  legal  rights  of  others.  He  said,  in 
substance,  nothing  more  than  that  they,  the  claimants,  were  mistaken 
if  they  supposed  that  the  services  of  attorneys  were  required  for 
the  presentation  and  prosecution  of  their  claims  before  the  Depart- 
ment. 

Equally  without  foundation  is  the  suggestion  that  the  Postmaster 
General  exceeded  his  authority  and  duty  when  he  called  the  atten- 
tion of  claimants  to  section  3477  of  the  Eevised  Statutes.  That 
officer  might  well  have  apprehended  that  the  salutary  provisions  of 
that  section  had  been  overlooked  or  disregarded  by  those  interested 
or  connected  with  the  prosecution  of  these  claims.  If  any  claimant 
had  transferred  or  assigned  his  claim,  or  any  part  of  it,  or  any  in- 
terest therein,  or  had  executed  any  power  of  attorney,  order  or  other 
instrument  for  receiving  payment  of  such  claim,  or  any  part  of  it, 
before  the  claim  was  allowed,  and  before  its  amount  was  ascertained 
and  a  warrant  for  its  payment  issued,  such  transfer,  assignment  and 
power  of  attorney  were  null  and  void.  The  Postmaster  General  was 
directly  in  the  line  of  duty  when,  in  order  that  the  will  of  Congress 
as  expressed  in  the  act  of  1883  might  be  carried  out,  he  informed 
claimants  that  they  were  under  no  legal  obligation  to  respect  any 
transfer,  assi^mment,  or  power  of  attorney,  wliieh  section  3477  of  the 
Revised  Statutes  declared  to  be  null  and  void.  If  the  plaintiff  had 
not  taken  any  such  transfers,  assignments,  or  powers  of  attorney 
from   his  clients,  he  could  not  have  been  injured  by  the  reference 


CHAP.    XX.]  COMMON    ASPECTS.  639 

made  by  the  Postmaster  General  to  that  section.  If  he  had  taken 
such  instruments,  he  cannot  complain  that  the  Postmaster  General 
called  the  attention  of  claimants  to  the  statute  on  the  subject,  and 
correctly  interpreted  it. 

The  act  of  the  head  of  one  of  the  departments  of  the  government 
in  calling  the  attention  of  any  person  having  business  with  such 
department  to  a  statute  relating  in  any  way  to  such  business,  cannot 
be  made  the  foundation  of  a  cause  of  action  against  such  officers. 

If,  as  we  hold  to  be  the  case,  the  circular  issued  by  the  Postmaster 
General  to  claimants  under  the  acts  of  Congress  in  question  was 
not  unauthorized  by  law,  nor  beyond  the  scope  of  his  official  duties, 
can  this  action  be  maintained  because  of  the  allegation  that  what 
the  officer  did  was  done  maliciously? 

This  precise  question  has  not,  so  far  as  we  are  aware,  been  the 
subject  of  judicial  determination.  But  there  are  adjudged  cases, 
in  which  principles  have  been  announced  that  have  some  bearing  upon 
the  present  inquiry. 

In  Randall  v.  Brigham,  7  Wall.  523,  535  —  which  was  an  action 
against  one  of  the  Justices  of  the  Superior  Court  of  Massachusetts 
for  an  alleged  wrongful  removal  of  the  plaintiff  from  his  office  of 
an  attorney  and  counsellor  at  law  —  it  was  said  that  whatever  might 
be  the  rule  in  respect  of  judges  of  limited  and  inferior  authority, 
judges  of  superior  or  general  authority  were  not  liable  to  civil  ac- 
tions for  their  judicial  acts,  even  when  such  acts  were  in  excess  of 
their  jurisdiction,  "  unless,  perhaps,  where  the  acts,  in  excess  of 
jurisdiction,  are  done  maliciously  or  corruptly." 

But  in  Bradley  v.  Fisher,  13  Wall.  335,  350,  351  — which  was  an 
action  against  a  Justice  of  the  Supreme  Court  of  the  District  of 
Columbia  to  recover  damages  alleged  to  have  been  sustained  by  the 
plaintiff  "by  reason  of  the  wilful,  malicious,  oppressive  and  tyran- 
nical acts  and  conduct "  of  the  defendant,  whereby  the  plaintiff  was 
deprived  of  his  right  to  practise  as  an  attorney  in  that  court  —  it 
was  said  that  the  qualifying  words,  above  quoted,  were  not  neces- 
sary to  a  correct  statement  of  the  law,  and  that  judges  of  courts  of 
superior  or  general  jurisdiction  were  not  liable  to  civil  suits  for  their 
judicial  acts,  even  when  such  acts  were  in  excess  of  their  jurisdic- 
tion, and  are  alleged  to  have  been  done  maliciously  or  corruptly.  A 
distinction  was  made  between  excess  of  jurisdiction  and  the  clear 
absence  of  all  jurisdiction  over  the  subject-matter,  the  court  observing 
that  "  where  there  is  clearly  no  jurisdiction  over  the  subject-matter, 
any  authority  exercised  is  a  usurped  authority,  and  for  the  exercise 
of  such  authority,  when  the  want  of  jurisdiction  is  known  to  the 
judge,  no  excuse  is  permissible.  In  this  country,"  the  court  said, 
"  the  judges  of  the  superior  courts  of  record  are  only  responsible  to 
the  people,  or  the  authorities  constituted  by  the  people,  from  whom 
they  receive  their  commissions,  for  the  manner  in  which  they  dis- 


640  SPALDING    V.   VILAS.  [CHAP.    XI. 

charge  the  great  trusts  of  their  office.  If  in  the  exercise  of  the  powers 
with  which  they  are  clothed  as  ministers  of  justice,  they  act  with 
partiality,  or  maliciously,  or  corruptly,  or  arbitrarily,  or  oppressively, 
they  may  l)e  called  to  an  account  by  impeachment  and  suspended  or 
removed  from  office."  Again :  "  The  exemption  of  judges  of  the 
superior  courts  of  record  from  liability  to  civil  suit  for  the  judicial 
acts  existing  when  there  is  jurisdiction  of  the  subject-matter,  though 
irregularity  and  error  attend  the  exercise  of  the  jurisdiction,  cannot 
be  affected  by  any  consideration  of  the  motives  with  which  the  acts 
are  done.  The  allegation  of  malicious  or  corrupt  motives  could  al- 
ways be  made,  and  if  the  motives  could  be  inquired  into  judges  would 
be  subjected  to  the  same  vexatious  litigation  upon  such  allegations, 
whether  the  motives  had  or  had  not  any  real  existence." 

In  Yates  v.  Lansing,  5  Johns.  282,  291,  Kent,  C.  J.,  said:  "The 
doctrine  which  holds  a  judge  exempt  from  a  civil  suit  or  indict- 
ment for  any  act  done  or  omitted  to  be  done  by  him,  sitting  as  a 
judge,  has  a  deep  root  in  the  common  law.  It  is  to  be  found  in  the 
earliest  judicial  records,  and  it  has  been  steadily  maintained  by  an 
undisputed  current  of  decisions  in  the  English  courts,  amidst  every 
change  of  policy,  and  through  every  revolution  of  their  government." 

The  same  principle  was  announced  in  England  in  the  case  of 
Fray  v.  Blackburn,  3  B.  &  S.  576,  in  which  Mr.  Justice  Crompton 
said :  "  It  is  a  principle  of  our  law  that  no  action  will  lie  against 
a  judge  of  one  of  the  superior  courts  for  a  judicial  act,  though  it  be 
alleged  to  have  been  done  maliciously  and  corruptly;  therefore,  the 
proposed  allegation  would  not  make  the  declaration  good.  The  pub- 
lic are  deeply  interested  in  this  rule,  which,  indeed,  exists  for  their 
benefit,  and  was  established  in  order  to  secure  the  independence  of  the 
judges  and  prevent  them  from  being  harassed  by  vexatious  actions." 
The  principle  was  applied  in  one  case  for  the  protection  of  a  county 
court  judge,  who  was  sued  for  slander,  the  words  complained  of 
having  l)een  spoken  by  him  in  his  capacity  as  judge,  while  sitting  in 
court,  engaged  in  the  trial  of  a  cause  in  which  the  plaintiff  was  de- 
fendant. Chief  Baron  Kelly  observed  that  a  series  of  decisions,  uni- 
formly to  the  same  effect,  extending  from  the  time  of  Lord  Coke 
to  the  present  time,  established  the  general  proposition  that  no  ac- 
tion will  lie  against  a  judge  for  any  acts  done  or  words  spoken  in 
his  judicial  capacity  in  a  court  of  justice,  and  that  the  doctrine  had 
been  applied  to  the  court  of  a  coroner,  and  to  a  court-martial,  as 
well  as  to  the  superior  courts.  lie  said :  "  It  is  essential  in  all 
courts  that  the  judges  who  are  appointed  to  administer  the  law  should 
be  permitted  to  administer  it  under  the  protection  of  the  law,  inde- 
pendently and  freely,  without  favor  and  without  fear.  This  provision 
of  the  law  is  not  for  the  protection  or  benefit  of  a  malicious  or  corrupt 
judge,  but  for  Iho  benefit  of  the  public,  whose  interest  it  is  that  the 
judges  should  be  at  liberty  to  exercise  their  functions   with   inde- 


CHAP.    XX.]  COMMON    ASPECTS.  641 

pendence  and  without  fear  of  consequences.  How  could  a  judge  so 
exercise  his  office  if  he  were  in  daily  and  hourly  fear  of  an  action 
being  brought  against  him,  and  of  having  the  question  submitted  to 
a  jury  whether  a  matter  on  which  he  had  commented  judicially  was  or 
was  not  relevant  to  the  case  before  him  ?  "  Scott  v.  Stansfield,  L.  R. 
3  Ex.  220,  223. 

In  Dawkins  v.  Lord  Paulet,  L.  R.  5  Q.  B.  94,  114,  which  was  an 
action  for  libel  brought  by  an  officer  of  the  army  against  his  superior 
officer  to  recover  damages  on  account  of  a  report  made  by  the  latter 
in  relation  to  certain  letters  of  the  former,  the  defendant  claimed 
that  what  he  did  was  done  in  the  course  of  and  as  an  act  of  military 
duty.  The  replication  stated  that  the  libel  was  written  by  the  de- 
fendant of  actual  malice,  without  any  reasonable,  probable  or  justifi- 
able cause,  and  not  bona  fide  or  in  the  bona  fide  discharge  of  the  de- 
fendant's duty  as  such  superior  officer.  The  case  was  heard  on  de- 
murrer to  the  replication,  and  it  was  held  by  all  the  justices  (Cock- 
burn,  C.  J.,  only  dissenting)  that  the  action  would  not  lie.  The  case 
was  first  considered  in  the  light  of  the  pleadings  and  the  admis- 
sions of  the  demurrer.  Mellor  J.,  said :  "  I  apprehend  that  the 
motives  under  which  a  man  acts  in  doing  a  duty  which  it  is  incumbent 
upon  him  to  do,  cannot  make  the  doing  of  that  duty  actionable,  how- 
ever malicious  they  may  be.  I  think  that  the  law  regards  the  doing 
of  the  duty  and  not  the  motives  from  or  under  which  it  is  done.  In 
short,  it  appears  to  me,  that  the  proposition  resulting  from  the  ad- 
mitted statements  in  this  record  amounts  to  this :  Does  an  action 
lie  against  a  man  for  maliciously  doing  his  duty?  I  am  of  opinion 
that  it  does  not ;  and,  therefore,  upon  the  pleadings  as  they  stand  we 
might  give  judgment  for  the  defendant."  But,  according  to  the  re- 
port of  that  case,  the  Attorney  General  did  not  rest  the  defence  on 
the  effect  of  the  admissions  in  the  pleadings,  but  contended  broadly 
that  no  action  would  lie  against  an  officer  of  the  army  charged  with 
duties  such  as  those  stated  on  the  record,  for  the  discharge  of  them. 
He  likened  the  case  to  that  of  the  judges  of  courts  of  law,  to  grand 
jurymen,  petty  jurymen,  and  to  witnesses,  against  whom  no  action 
lies  for  what  they  do  in  the  course  of  their  duty,  however  maliciously 
they  may  do  it,  and  claimed  immunity  for  the  defendant  for  the 
acts  done  in  the  course  of  his  duty  on  the  highest  grounds  of  policy 
and  convenience.  No  judge,  no  jury,  nor  witness,  he  said,  "  could 
discharge  his  duty  freely  if  not  protected  by  a  positive  rule  of  law 
from  being  harassed  by  actions  in  respect  of  the  mode  in  which  he 
did  the  duty  imposed  upon  him,  and  he  contended  that  the  posi- 
tion of  the  dofendiint  nianifostly  required  the  like  proter-tion  to  be 
extended  to  him  and  to  all  officers  in  the  same  position."  "  There 
is,"  Mellor,  J.,  said,  "  little  doubt  that  the  reasons  which  justify 
the  immunity  in  the  one  case  do  in  great  measure  extend  to  the 
other." 


642  SPALDING    V.    VILAS.  [CIIAP,    XX. 

An  instructive  case  upon  the  general  subject  of  the  immunity  of 
public  officers  from  actions  for  damages  on  account  of  what  they  may 
have  done  in  the  course  of  their  official  duties  is  Dawkins  v.  Lord 
Eokeby,  L.  E.  8  Q.  B.  255,  262,  the  judgment  in  which  was  affirmed 
by  the  House  of  Lords.  L.  E.  7  H.  L.  744,  754.  The  defendant,  a 
general  in  the  English  army,  was  called  before  a  court  of  inquiry, 
legally  assembled  to  inquire  into  the  conduct  of  the  plaintiff,  also 
an  officer  in  the  army.  He  made  statements  in  evidence,  and  after 
the  close  of  the  evidence,  handed  in  a  written  paper  (not  called  for 
by  the  court,  but  having  reference  to  the  subject  of  the  inquiry)  as  to 
the  conduct  of  that  officer.  An  action  was  brought  in  respect  of  those 
statements,  which  were  alleged  to  be  both  untrue  and  malicious.  That 
case  came  before  the  Queen's  Bench,  in  the  Exchequer  Chamber, 
upon  a  bill  of  exceptions  allowed  by  Mr.  Justice  Blackburn,  who  had 
instructed  the  jury  as  matter  of  law  that  the  action  would  not  lie, 
if  the  verbal  and  written  statements  complained  of  were  made  by 
the  defendant,  being  a  military  officer,  in  the  course  of  a  military 
inquiry,  in  relation  to  the  conduct  of  the  plaintiff,  he  being  also  a 
military  officer,  and  with  reference  to  the  subject  of  that  inquiry; 
and  this  even  though  the  plaintiff  should  prove  that  the  defendant 
had  acted  mala  fide,  and  with  actual  malice,  and  without  any  reason- 
able or  probable  cause,  and  with  the  knowledge  that  the  statements 
made  and  handed  in  by  him  were  false.  The  court,  all  the  judges 
concurring,  sustained  the  correctness  of  this  ruling,  and  held  that 
the  statements  were  privileged.  "  The  authorities,"  it  was  said,  "  are 
clear,  uniform  and  conclusive,  that  no  action  of  libel  or  slander  lies, 
whether  against  judges,  counsel,  witnesses  or  parties,  for  words 
written  or  spoken  in  the  ordinary  course  of  any  proceeding  before 
any  court  or  tribunal  recognized  by  law."  Lord  Chancellor  Cairns, 
in  the  House  of  Lords,  said :  "  Adopting  the  expressions  of  the  learned 
judges  with  regard  to  what  I  take  to  be  the  settled  law  as  to  the 
protection  of  witnesses  in  judicial  proceedings,  I  certainly  am  of 
opinion  that  upon  all  principles,  and  certainly  upon  all  considerations 
of  convenience  and  public  policy,  the  same  protection  which  is  ex- 
tended to  a  witness  in  a  judicial  proceeding  who  has  been  examined 
on  oath  ought  to  be  extended,  and  must  be  extended,  to  a  military 
man  who  is  called  before  a  court  of  inquiry  of  this  kind  for  the 
purpose  of  testifying  there  upon  a  matter  of  military  discipline  con- 
nected with  the  army.  It  is  not  denied  that  the  statements  which 
he  made,  both  those  which  were  made  viva  voce  and  those  which 
were  made  in  writing,  were  relative  to  the  inquiry." 

We  are  of  opinion  that  the  same  general  considerations  of  public 
policy  and  convenience  which  demand  for  judges  of  courts  of  superior 
jurisfliction  immunity  from  civil  suits  for  damages  arising  from  acts 
done  by  them  in  tlie  course  of  the  performance  of  their  judicial  func- 
tions, apply   to  a  large  extent  to   official   communications   made  by 


CHAP.    XX.]  COMMON   ASPECTS.  643 

heads  of  Executive  Departments  when  engaged  in  the  discharge  of 
duties  imposed  upon  them  by  law.  The  interests  of  the  people  require 
that  due  protection  be  accorded  to  them  in  respect  of  their  ofl'icial 
acts.  As  in  the  ease  of  a  judicial  officer,  we  recognize  a  distinction 
between  action  taken  by  the  head  of  a  Department  in  reference  to 
matters  which  are  manifestly  or  palpably  beyond  his  authority,  and 
action  having  more  or  less  connection  with  the  general  matters  com- 
mitted by  law  to  his  control  or  supervision.  Whatever  difficulty  may 
arise  in  applying  these  principles  to  particular  cases,  in  which  the 
rights  of  the  citizen  may  have  been  materially  impaired  by  the  in- 
considerate or  wrongful  action  of  the  head  of  a  Department,  it  is 
clear  —  and  the  present  case  requires  nothing  more  to  be  determined 
—  that  he  cannot  be  held  liable  to  a  civil  suit  for  damages  on  account 
of  official  communications  made  by  him  pursuant  to  an  act  of  Con- 
gress, and  in  respect  of  matters  within  his  authority,  by  reason  of 
any  personal  motive  that  might  be  alleged  to  have  prompted  his  ac- 
tion; for,  personal  motives  cannot  be  imputed  to  duly  authorized  of- 
ficial conduct.  In  exercising  the  functions  of  his  office,  the  head  of 
an  Executive  Department,  keeping  within  the  limits  of  his  authority, 
should  not  be  under  an  apprehension  that  the  motives  that  control 
his  official  conduct  may,  at  any  time,  become  the  subject  of  inquiry 
in  a  civil  suit  for  damages.  It  would  seriously  cripple  the  proper 
and  effective  administration  of  public  affairs  as  entrusted  to  the 
executive  branch  of  the  government,  if  he  were  subject  to  any  such 
restraint.  He  may  have  legal  authority  to  act,  but  he  may  have  such 
large  discretion  in  the  premises  that  it  will  not  always  be  his  absolute 
duty  to  exercise  the  authority  with  which  he  is  invested.  But  if  he 
acts,  having  authority,  his  conduct  cannot  be  made  the  foundation 
of  a  suit  against  him  personally  for  damages,  even  if  the  circiun- 
stances  show  that  he  is  not  disagreeably  impressed  by  the  fact  that 
his  action  injuriously  affects  the  claims  of  particular  individuals.  In 
the  present  case,  as  we  have  found,  the  defendant,  in  issuing  the 
circular  in  question,  did  not  exceed  his  authority,  nor  pass  the  line 
of  his  duty,  as  Postmaster  General.  The  motive  that  impelled  him 
to  do  that  of  which  the  plaintiff  complains  is,  therefore,  wholly  im- 
material. If  we  were  to  hold  that  the  demurrer  admitted,  for  the 
purposes  of  the  trial,  that  the  defendant  acted  maliciously,  that 
could  not  change  the  law. 

The  judgment  of  the  Supreme  Court  of  the  District  of  Columbia 
is 

A-fJirmed} 

»See  Chatterton  v.  Secretary  of  State.     [1895],  2  Q.  B.  189. 


644  SLAYTON    V.    BAllEY.  [CIIAP.    XX. 

4.  Capacity. 

A.  Infants. 

SLAYTON  V.  BAEEY. 

Supreme  Court  of  Massachusetts,  March,  1900.     175  Mass.  513. 

Tort,,  for  deceit  and  for  conversion.  Trial  in  the  Superior  Court, 
before  Blodgett,  J.,  who  directed  the  jury  to  return  a  verdict  for  the 
defendant;  and  the  plaintiff  alleged  exceptions.  The  material  facts 
appear  in  the  opinion,  and  in  a  note  by  the  reporter. 

Morton,  J.  The  declaration  in  this  case  is  in  two  counts.  The 
first  count  alleges  in  substance  that  the  defendant  intending  to  de- 
fraud the  plaintiff,  deceitfully  and  fraudulently  represented  to  him 
that  he  was  of  full  age  and  thereby  induced  the  plaintiff  to  sell  and 
deliver  to  him  the  goods  described,  and  though  often  requested  had 
refused  to  pay  for  or  return  the  goods  but  had  delivered  them  to 
persons  unknown  to  the  plaintiff.  The  second  count  is  in  tort  for 
the  conversion  of  the  goods  described  in  the  first  count.  The  case 
is  here  on  exceptions  to  the  refusal  of  the  presiding  judge  to  give 
certain  instructions  requested  by  the  plaintiff,^  and  to  his  ruling  or- 
dering a  verdict  for  the  defendant.  The  question  is  whether  the 
plaintiff  can  maintain  his  action.  He  could  not  bring  an  action  of 
contract,  and  so  has  brought  an  action  of  tort.  The  precise  question 
presented  has  never  been  passed  upon  by  this  court.  Merriam  v. 
Cunningham,  11  Cush.  40,  43.  In  other  jurisdictions  it  has  been 
decided  differently  by  different  courts.  We  think  that  the  weight  of 
authority  is  against  the  right  to  maintain  the  action.  Johnson  v. 
Pie,  1  Lev.  169;  1  Sid.  258;  1  Keb.  905.  Grove  v.  Nevill,  1  Keb.  778. 
Jennings  v.  Eundall,  8  T.  B.  335.  Green  v.  Greenback,  2  Marsh.  485. 
Price  V.  Hewett,  8  Ex.  146.  Wright  v.  Leonard,  11  C.  B.  (N.  S.) 
258.  De  Roo  v.  Foster,  12  C.  B.  (N.  S.)  272.  Gilson  v.  Spear,  38 
Vt.  311.  Xash  V.  Jewett,  61  Vt.  501.  Ferguson  v.  Bobo,  54  Miss. 
121.  Brown  v.  Dunham,  1  Root,  272.  Geer  v.  Hovy,  1  Root,  179. 
Wilt  V.  Welsh,  6  Watts,  9.  Burns  v.  Hill,  19  Ga.  22.  Kilgore  v.  Jor- 
dan, 17  Tex.  341.     Benjamin,  Sales  (6th  ed.)  s.  23.     Cooley,  Torts, 

^  Thp  nlnlntlff  requested  the  .lHd?e  to  instnirt  the  jury:  1.  That  if  the  defend- 
ant. !i  miridr,  for  the  purpose  of  dpfranrtinj;  the  plaintiff  and  indiiring  Iiim  to  sell 
nn'l  (IcllvfT  croofls  to  tho  defendMnt  falsely  represonted  thnt  lie  was  of  full  atre. 
and  tin;  pljilntlff,  rolyini;  on  such  representation,  was  thereby  indueer!  to  sell  and 
dfllvcr  Koods  to  the  defendant,  who  srihseouently  repudiated  his  purchase  and  re- 
fiisf'd  to  pay  for  the  (rf)ods  for  the  reason  that  he  was  a  minor,  he  is  liable  in 
dnm;i[rc«.  2.  That  If  the  dcfendnnt,  a  minor,  purchased  jroods  of  the  plaintiff, 
otitiilncd  possesRlnn  of  them,  converted  them  to  his  own  use,  and  subsequently 
retpiidlaled  the  r>urchaKf'  and  refused  to  pay  for  the  poods  for  the  reason  that  he 
was  a  mln'ir.  the  plaintiff  at  the  time  of  the  purchase  havintr  no  knowledge  of 
thi-  dcfciidant'M  minority,  the  offe<-t  of  the  avoidance  by  the  defendant  of  his  con- 
tract was  to  make  It  void  from  the  beginning,  and  to  render  him  liable  In  damages 
tuT  the  couvcTHlon  of  the  goods. 


II 


CHAP.    XX.]  COMMON    ASPECTS.  645 

(2d  ed.)  126.  Add.  Torts,  (Wood's  ed.)  s.  1314.  See  contra,  Fitts 
V.  Hall,  9  N.  H.  441;  Eaton  v.  Hill,  50  N.  H.  235;  Hall  v.  Butterfield, 
59  N.  H.  354;  Rice  v.  Boyer,  108  Ind.  472;  Wallace  v.  Morss,  5  Hill, 
(N.  Y.)  391. 

The  general  rule  is,  of  course,  that  infants  are  liable  for  their  torts. 
Sikes  V.  Johnson,  16  Mass.  389.  Homer  v.  Thwing,  3  Pick.  492. 
Shaw  V.  Coffin,  58  Maine,  254.  Vasse  v.  Smith,  6  Cranch,  226.  But 
the  rule  is  not  an  unlimited  one,  but  is  to  be  applied  with  due  regard 
to  the  other  equally  well  settled  rule  that,  with  certain  exceptions,  they 
are  not  liable  on  their  contracts;  and  the  dominant  consideration  is 
not  that  of  liability  for  their  torts  but  of  protection  from  their  con- 
tracts. The  true  rule  seems  to  us  to  be  as  stated  in  Liverpool  Adelphi 
Loan  Association  v.  Fairhurst,  9  Exch.  422,  429,  where  it  was  sought 
to  hold  a  married  woman  for  a  fraudulent  misrepresentation,  namely, 
if  the  fraud  "  is  directly  connected  with  the  contract  .  .  .  and  is  the 
means  of  effecting  it,  and  parcel  of  the  same  transaction,"  then 
the  infant  will  not  be  liable  in  tort.  The  rule  is  stated  in  2  Kent 
Com.  241,  as  follows :  "  The  fraudulent  act,  to  charge  him  (the  in- 
fant) must  be  wholly  tortious;  and  a  matter  arising  ex  contractu, 
though  infected  with  fraud,  cannot  be  changed  into  a  tort  in  order 
to  charge  the  infant  in  trover,  or  case,  by  a  change  in  the  form  of  the 
action."  In  the  present  case  it  seems  to  us  that  the  fraud  on  which 
the  plaintiff  relies  was  part  and  parcel  of  the  contract  and  directly 
connected  with  it.  The  plaintiff  cannot  maintain  his  action  without 
showing  that  there  was  a  contract,  which  he  was  induced  to  enter  into 
by  the  defendant's  fraudulent  representations  in  regard  to  his  capac- 
ity to  contract,  and  that  pursuant  to  that  contract  there  was  a  sale 
and  delivery  of  the  goods  in  question.  Whether  as  an  original  proposi- 
tion it  would  be  better  if  the  rule  were  as  laid  down  in  Fitts  v.  Hall 
and  Hall  v.  Butterfield,  in  New  Hampshire,  and  Eice  v.  Boyer,  ubi 
supra,  in  Indiana,  we  need  not  consider.  The  plaintiff  relies  on 
Homer  v.  Thwing,  3  Pick.  492,  Badger  v.  Phinney,  15  Mass.  359,  and 
Walker  v.  Davis,  1  Gray  506.  In  Walker  v.  Davis  there  was  no  com- 
pleted contract  and  the  title  did  not  pass.  The  sale  of  the  cow  by  the 
defendant  operated  therefore  clearly  as  a  conversion.  Badger  v. 
Phinney  was  an  action  of  replevin,  and  it  was  held  that  the  property 
had  not  passed,  or  if  it  had  that  it  had  revested  in  the  plaintiff  in 
consequence  of  the  defendant's  fraud.  The  plaintiff  maintained  his 
action  independently  of  the  contract.  In  Homer  v.  Thwing  the  tort 
was  only  incidentally  connected  with  the  contract  of  hiring. 

We  think  that  the  exceptions  should  be  overruled. 

So  ordered, 


646  WILLIAMS    V.    HAYS.  [CHAP.   XX. 

B.  Insane  Persons. 
WILLIAMS  V.  HAYS. 

Court  of  Appeals  of  New  York,  November,  1894.     143  N.  Y.  442. 

Plaintiff  sued  as  assignee  of  the  Phoenix  Insurance  Co.  to 
recover  $893.89  paid  to  the  firm  of  Parsons  &  Loud,  as  owners  of 
one-sixteenth  of  a  vessel,  upon  a  policy  cl  insurance  issued  by  said 
company  to  the  said  firm.  There  was  a  verdict  for  the  defendant  and 
the  plaintiff's  motion  for  a  new  trial,  and  motion  for  a  re-argument 
were  denied.  The  orders  denying  these  motions  were  affirmed  in  the 
general  term  of  the  Supreme  Court  and  the  plaintiff  appealed. 

The  facts  are  stated  in  the  opinion. 

Earle,  J.  The  defendant  and  others,  among  whom  were  Parsons 
and  Loud,  were  joint  owners  of  the  brig  "  Sheldon."  By  an  arrange- 
ment between  the  defendant  and  the  other  owners  he  took  the  vessel 
to  sail  on  shares.  He  was  to  man  the  vessel,  to  pay  the  crew  and  to 
furnish  the  supplies,  and  he  was  to  have  one-half  of  her  earnings,  after 
certain  deductions,  for  his  share,  and  the  other  owners  were  to  have 
from  him  the  other  half,  after  certain  deductions,  for  their  share. 
He  was  to  have  the  absolute  control  and  management  of  the  vessel, 
and  became  her  owner  pro  hac  vice.  Webb  v.  Pierce,  1  Curt.  113; 
Thorp  V.  Hammond,  13  Wall.  416 ;  Somes  v.  White,  65  Me.  542.  The 
defendant,  under  the  arrangement  between  him  and  the  other  owners, 
in  no  sense  became  their  agent  or  servant.  In  Webb  v.  Pierce  it  was 
held  that  where  a  master  hires  a  vessel  on  shares  under  an  agreement 
to  victual  and  man  her,  and  employ  her  on  such  voyages  as  he  thinks 
best,  having  thereby  the  entire  possession,  command  and  navigation 
of  her,  he  thereby  becomes  her  owner  pro  hac  vice,  and  the  relation 
of  principal  and  agent  does  not  exist  between  him  and  the  owners. 
The  other  cases  are  to  the  same  effect.  The  defendant  thus  became 
the  charterer  or  lessee  of  the  vessel  and  was  responsible  to  the  other 
owners  for  due  care  in  her  management,  and  so  the  trial  judge  held. 

The  Sheldon  was  loaded  with  ice  and  started  from  the  coast  of 
i\Iaine  for  a  southern  port.  She  soon  encountered  storms,  and  the 
defendant  for  more  than  two  days  was  constantly  on  duty,  and  then 
becoming  exhausted,  he  went  to  his  cal)in,  leaving  the  vessel  in  charge 
of  the  mate  and  crew.  He  took  a  large  dose  of  quinine  and  laid  down. 
The  mate  found  that  the  rudfler  was  broken  and  useless,  and  that  the 
vessel  roiiM  not  be  steered.  Tie  caused  the  cnptnin  to  come  on  deck. 
He  refused  to  believe  that  the  vessel  was  in  any  trouble,  and  refused 
the  help  of  two  tugs.  Hie  masters  of  which  saw  the  difficulty  under 
■which  Ills  vessel  was  laboring,  and  successively  offered  to  take  her  in 


CHAP,    XX.]  COMMON    ASPECTS.  647 

tow.  They  cautioned  him  that  his  vessel  was  gradually  and  certainly 
drifting  upon  the  shore;  and  in  broad  day-light  she  did  drift  upon 
the  shore  without  any  effort  i;pon  the  part  of  the  defendant  or  any 
of  his  crew  to  save  her,  and  she  became  a  total  wreck.  Parsons  and 
Loud  had  insured  their  interest  in  the  Phoenix  Insurance  Company, 
and  it  paid  them  the  loss.  It  thus  became  subrogated  to  their  claim, 
if  any,  against  the  defendant  for  his  negligence  or  misconduct  in  the 
management  of  the  vessel,  and  it  assigned  that  claim  to  tlie  plaintiff. 
He,  standing  in  the  shoes  of  Parsons  and  Loud,  brought  this  action 
against  the  defendant  to  recover  damages  for  the  loss  of  the  vessel, 
alleging  that  it  was  due  to  his  carelessness  and  misconduct. 

The  defendant  claims  that  from  the  time  he  went  to  his  cabin, 
leaving  the  vessel  in  charge  of  his  mate  and  crew,  to  the  time  the 
vessel  was  wrecked,  and  he  found  himself  in  the  life-saving  station, 
he  was  unconscious  and  knew  nothing  of  what  occurred  —  that  in  fact 
he  was  from  some  cause  insane,  and,  therefore,  not  responsible  for  the 
loss  of  the  vessel.  The  case  was  submitted  to  the  jury  on  the  theory 
that  the  defendant,  if  sane,  was  guilty  of  negligence  causing  the 
destruction  of  the  vessel,  but  if  insane  was  not  responsible  for  her 
loss  through  any  conduct  on  his  part  which  in  a  sane  person  would 
have  constituted  such  negligence  as  would  have  imposed  responsi- 
bility. 

The  important  question  for  us  to  determine  then  is  whether  the 
insanity  of  the  defendant  furnishes  a  defence  to  the  plaintiff's  claim, 
and  I  think  it  does  not.  The  general  rule  is  that  an  insane  person 
is  just  as  responsible  for  his  torts  as  a  sane  person,  and  the  rule  ap- 
plies to  all  torts,  except  perhaps  those  in  which  malice  and,  therefore, 
intention,  actual  or  imputed,  is  a  necessary  ingredient,  like  libel, 
slander  and  malicious  prosecution.  In  all  other  torts  intention  is  not 
an  ingredient,  and  the  actor  is  responsible,  although  he  acted  with  a 
good  and  even  laudable  purpose,  without  any  malice.  The  law  looks 
to  the  person  damaged  by  another  and  seeks  to  make  him  whole,  with- 
out reference  to  the  purpose  or  the  condition,  mental  or  physical,  of 
the  person  causing  the  damage.  The  liability  of  a  lunatic,  for  his 
torts,  in  the  opinions  of  judges,  has  been  placed  upon  several  grounds. 
The  rule  has  been  invoked  that  where  one  of  two  innocent  persons 
must  bear  a  loss,  he  must  bear  it  whose  act  caused  it.  It  is  said  that 
public  policy  requires  the  enforcement  of  the  liability  that  the  rela- 
tives of  a  lunatic  may  be  under  inducement  to  restrain  him,  and  that 
tort  feasors  may  not  simulate  or  pretend  insanity  to  defend  their 
wrongful  acts  causing  damage  to  others.  The  lunatic  must  bear  the 
loss  occasioned  by  his  torts,  as  he  bears  his  other  misfortunes,  and  the 
burden  of  such  loss  may  not  be  put  upon  others. 

In  Buswell  on  Insanity  (sec.  355)  it  is  said:  "Since  in  a  civil 
action  for  a  tort  it  is  not  necessary  to  aver  or  prove  any  wrongful 
intent  on  the  part  of  the  defendant,  it  is  a  rule  of  the  common  law 


648  WILLIAMS    V.    HATS.  [CHAP.   XX. 

that  although  a  lunatic  may  not  be  punishable  criminally,  he  is  liable 
in  a  civil  action  for  any  tort  he  may  commit." 

In  Cooley  on  Torts  (98)  the  learned  author  says:  "A  wrong  is  an 
invasion  of  right  to  the  damage  of  the  party  who  suffers  it.  It  consists 
in  the  injury  done,  and  not  commonly  in  the  purpose  or  mental  or 
physical  capacity  of  the  person  or  agent  doing  it.  It  may  or  may  not 
have  been  done  with  bad  motive;  the  question  of  motive  is  usually  a 
question  of  aggravation  only.  Therefore,  the  law  in  giving  redress 
has  in  view  the  case  of  the  party  injured,  and  the  extent  of  his  injury, 
and  makes  what  he  suffers  the  measure  of  compensation.  .  .  .  There 
is  consequently  no  anomaly  in  compelling  one  who  is  not  chargeabhj 
with  wrong  intent  to  make  compensation  for  an  injury  committed  by 
him ;  for,  as  is  said  in  an  early  case,  '  the  reason  is  because  he  that 
is  damaged  ought  to  be  recompensed.' "  And  at  page  100  he  says : 
"  Undoubtedly  there  is  some  appearance  of  hardship  —  even  of  in- 
justice —  in  compelling  one  to  respond  for  that  which,  for  want  of 
the  control  of  reason,  he  was  unable  to  avoid;  that  it  is  imposing 
upon  a  person  already  visited  with  the  inexpressible  calamity  of  men- 
tal obscurity  an  obligation  to  observe  the  same  care  and  precaution 
respecting  the  rights  of  others  tliat  the  law  demands  of  one  in  the 
full  possession  of  his  faculties.  But  the  question  of  liability  in  these 
cases,  as  well  as  in  others,  is  a  question  of  policy,  and  it  is  to  be  dis- 
posed of  as  would  be  the  question  whether  the  incompetent  person 
should  be  supported  at  the  expense  of  the  public,  or  of  his  neighbors, 
or  at  the  expense  of  his  own  estate.  If  his  mental  disorder  makes 
him  dependent,  and  at  the  same  time  prompts  him  to  commit  injuries, 
there  seems  to  be  no  greater  reason  for  imposing  upon  the  neighbors 
or  the  public  one  set  of  these  consequences  rather  than  the  other; 
no  more  propriety  or  justice  in  making  others  bear  the  losses  result- 
ing from  his  unreasoning  fury  when  it  is  spent  upon  them  or  their 
property,  than  there  would  be  in  calling  upon  them  to  pay  the  expense 
of  his  confinement  in  an  asylum  when  his  own  estate  is  ample  for  the 
purpose." 


The  doctrine  of  those  authorities  is  illustrated  in  many  interesting 
cases.  Bullock  v.  Bal)cock,  3  Wend.  391 ;  Hartfield  v.  Roper,  21  Id. 
615 ;  Krom  v.  Schoonmaker,  3  Barb.  G47 ;  Conklin  v.  Thompson,  29 
Id.  218;  Cross  v.  Kent,  32  Md.  581;  Neal  v.  Gillett,  23  Conn.  437; 
Huchting  v.  Engel,  17  Wis.  230;  Brown  v.  Howe,  9  Cray,  84;  Morain 
V.  Devlin,  132  Mass.  87;  Beales  v.  See,  10  Penn.  St.  56;  Humphrey 
V.  Douglass,  10  Vt.  71  ;  Morse  v.  Crawford,  17  Id.  ^99;  Cross  v.  An- 
drews, Croke,  Elizabeth,  622;  Jennings  v.  Rundall,  8  T.  R.  336. 

In  Bullock  V.  Babcock,  Judge  Marev,  writing  in  a  case  where  an 
infant  twelve  years  old  was  heir!  liable  for  putting  out  one  of  the 
eycH  of  another  infant,  said:  "The  liabilily  to  answer  in   damages 


CHAP.    XX.]  COMMON   ASPECTS.  649 

for  trespass  does  not  depend  upon  tlie  mind  or  capacity  of  the  actor; 
for  idiots  and  lunatics  are  responsible  in  the  action  of  trespass  for 
injuries  inflicted  by  them/' 

In  Krum  v.  Schoonmaker  it  was  held  that  a  lunatic  may  be  sued 
for  an  injury  done  to  another,  because  the  intent  with  which  tlie  act 
was  done  is  not  material.  There  the  action  was  against  a  justice  of 
the  peace  for  false  imprisonment  for  issuing  a  warrant  without  any 
complaint,  by  virtue  of  which  the  plaintiff  was  arrested. 

In  Cross  v.  Kent,  it  was  held  that  a  lunatic  or  insane  person,  though 
not  punishable  criminally,  is  liable  to  a  civil  action  for  any  tort  he 
may  commit;  that  in  an  action  against  a  party  for  setting  fire  to  and 
burning  a  barn,  neither  evidence  of  his  lunacy,  nor  that  the  burning 
was  the  result  of  accident,  is  admissible  in  mitigation  of  compensatory 
damages. 

In  Neal  v.  Gillett,  in  an  action  on  the  case  for  damages  caused  by 
the  negligence  of  the  defendants,  who  were  severally  of  the  ages  of 
thirteen  and  sixteen  at  the  time  of  the  injury,  it  was  held  that  where 
the  plaintiff  claims  only  actual  damages,  the  youth  of  the  defendants 
is  not  to  be  taken  into  consideration  in  determining  the  question  of 
their  negligence. 

In  Huchting  v.  Engel,  it  was  held  that  an  infant,  though  under 
seven  years  of  age,  was  liable  in  an  action  of  trespass  for  breaking 
and  entering  the  plaintiff's  premises  and  breaking  down  and  destroy- 
ing his  shrubbery  and  flowers. 

In  Karow  v.  The  Continental  Insurance  Company  it  is  said  in  the 
opinion :  "  While  the  burning  of  his  own  property  by  an  assured  under 
no  restraint  of  duty  and  incapable  of  care,  and  without  any  intent  or 
design,  does  not  relieve  the  company  from  liability,  yet  the  same  act 
of  burning  another's  property  might  subject  such  person  to  damages 
therefor,  not  on  the  ground  of  negligence,  as  that  word  is  usually 
understood,  but,  in  the  language  of  Chief  Justice  Gibson,  '  on  the 
principle  that  where  a  loss  must  be  borne  by  one  of  two  innocent  per- 
sons, it  should  be  borne  by  him  who  occasioned  it.'  " 

In  Brown  v.  Howe  an  insane  person  carelessly  set  fire  to  the  dwell- 
ing house  of  his  guardian,  and  while  it  was  held  that  the  guardian 
could  not  be  allowed  the  amount  of  his  damages  in  his  probate  ac- 
count, it  was  held  that  his  only  course  was  to  sue  the  administrator 
of  the  lunatic  who  had  died,  in  a  court  of  law,  and  have  a  judgment 
fixing  his  damages,  and  collect  it  from  the  assets,  if  the  estate  was 
solvent;   if  not,  to  share  with  the  other  creditors. 

In  Morain  v.  Devlin,  it  was  held  that  a  lunatic  was  civilly  liable 
for  an  injury  caused  by  the  defective  condition  of  a  place,  not  in  the 
exclusive  occupancy  and  control  of  a  tenant,  upon  real  estate  of  which 
he  is  the  owner,  and  of  which  his  guardian  has  the  care  and  manage- 
ment. 

In  Beales  v.  See  it  was  said  by  Gibson,  C.  J. :  "  As  an  insane  man 


550  WILLIAMS   V.   HATS.  [CHAP.   XX. 

is  civilly  liable  for  his  torts,  he  is  liable  to  bear  the  consequences  of 
his  infirmity,  as  he  is  liable  to  bear  his  misfortunes,  on  the  principle 
that  where  a  loss  must  be  borne  by  one  of  two  innocent  persons  it 
shall  be  borne  by  him  who  occasioned  it." 

In  Morse  v.  Crawford,  in  an  action  for  tort,  it  was  held  that  the 
fact  that  the  defendant  was  insane  at  the  time  of  committing  the 
injury  was  no  defence  to  the  action,  and  that  if  the  action  be  for 
destroying  property  intrusted  to  the  defendant,  it  is  no  defence  that 
the  plaintiff,  at  the  time  of  delivering  the  property  to  the  defendant, 
knew  that  he  was  insane.  In  the  opinion  of  the  court  it  is  said :  "  It 
is  a  common  principle  that  a  lunatic  is  liable  for  any  tort  which  he 
may  commit,  though  he  is  not  punishable  criminally.  When  one 
receives  an  injury  from  the  act  of  another,  this  is  a  trespass,  though 
done  by  mistake  or  without  design.  Consequently  no  reason  can  be 
assigned  why  a  lunatic  should  not  be  held  liable." 

In  Jennings  v.  Eundall,  Lord  Chief  Justice  Kenyon  said :  "  If  an 
infant  commit  an  assault,  or  utter  slander,  God  forbid  that  he  should 
not  be  answerable  for  it  in  a  court  of  justice."  Lawrence,  J.,  also 
writing  in  that  case,  mentioned  the  distinction  between  negligence 
and  an  act  done  by  an  infant;  and  he  held  that  the  same  rule  would 
have  to  be  applied  if  an  action  were  brought  against  an  infant  for 
negligently  keeping  the  plaintiff's  cattle,  by  which  they  died,  as  would 
be  applied  if  the  declaration  charged  the  infant  with  having  given 
the  cattle  bad  food  by  which  they  died. 

There  can  be  no  distinction  as  to  the  liability  of  infants  and  luna- 
tics, between  torts  of  non-feasance  and  of  misfeasance  —  between 
acts  of  pure  negligence  and  acts  of  trespass.  The  ground  of  the 
liability  is  the  damage  caused  by  the  tort.  That  is  just  as  great 
whether  caused  by  negligence  or  trespass;  the  injured  party  is  just 
as  much  entitled  to  compensation  in  the  one  case  as  in  the  other, 
and  the  incompetent  person  must,  upon  principles  of  right  and 
justice  and  of  public  policy,  be  just  as  much  bound  to  make  good 
the  loss  in  the  one  case  as  tlie  other;  and  I  have  found  no  case  which 
makes  the  distinction.  That  infants  and  lunatics  are  liable  for 
damage  to  property  caused  by  their  negligent  acts,  was  asserted  in 
several  of  the  authorities  above  cited ;  and  it  has  never  been  doubted 
that  at  common  law  an  action  of  trover  would  lie  against  one  intrusted 
witli  the  personal  property  of  anotlier  who  destroys  it,  whether  the 
destruction  be  by  a  negligent  act  or  a  wilful  tort. 

I  sum  up  the  result  of  my  examination  of  the  authorities  as  follows : 
This  vessel  was  intrusted  to  the  defendant  —  not  as  agent  —  but 
as  to  the  other  owners  as  charterer,  lessee  or  bailee,  and  if  he  caused 
her  destruction  by  wbat  in  sane  persons  would  be  called  willful  or 
negligent  conduct,  the  law  holds  him  responsible.  The  misfortune 
must  fall  upon  bim  and  not  upon  the  other  owners  of  the  vessel. 

If  the  defendant  had  become  insane  solely  in  consequence  of  his 


CHAP.    XX.]  COMMON    ABPECTS.  651 

efforts  to  save  the  vessel  during  the  storm,  we  would  have  had  a 
different  case  to  deal  with.  He  was  not  responsible  for  the  storm, 
and  while  it  was  raging  his  efforts  to  save  the  vessel  were  tireless 
and  unceasing,  and  if  he  thus  became  mentally  and  physically  incom- 
petent to  give  the  vessel  any  further  care,  it  might  be  claimed  that 
his  want  of  care  ought  not  to  be  attributed  to  him  as  a  fault.  In 
reference  to  such  a  case  we  do  not  now  express  any  opinion. 

If  it  should  be  found  upon  the  new  trial  of  this  action  that  the 
defendant's  mental  condition  was  produced  wholly  by  his  efforts  to 
save  the  vessel  during  the  storm,  and  it  should,  therefore,  be  held 
that  no  fault  could  be  attributed  to  him  on  account  of  what  he  per- 
sonally did  or  omitted  to  do,  then  the  question  would  still  remain 
whether  the  carelessness  of  his  mate  and  crew,  who  were  his  serv- 
ants, could  not  be  attributed  to  him,  and  his  liability  be  thus  based 
upon  their  carelessness.  They  did  nothing  whatever  to  save  the 
vessel.  They  did  not  even  expostulate  with  him  or  tender  him  any 
advice  or  a  word  of  caution,  and  yet  the  mate  saw  what  the  captains 
of  the  tugs  saw  at  a  distance,  that  something  was  the  matter  with 
him.  It  is  difficult  to  perceive  how  they  could  have  failed  to  see  that 
he  was  either  incompetent  to  manage  the  vessel,  or  that  he  was  will- 
fully wrecking  her.  We  leave  the  effect  of  their  conduct  upon  the 
defendant's  liability  to  be  determined,  if  it  should  become  necessary, 
upon  the  new  trial,  simply  saying  that  the  question  is  worthy  of  care- 
ful consideration,  whether  the  defendant  can  allege  his  own  incom- 
petency, and  at  the  same  time  claim  that  for  any  reason  the  mate 
ought  not  to  have  taken  control  of  the  vessel. 

The  case  of  Hays  v.  Phenix  Insurance  Co.,  25  J.  &  S.  199;  aff.,  127 
N.  Y.  656,  which  seems  to  have  controlled  the  decision  below,  is  not 
an  authority  for  the  defendant.  There  he  brought  an  action  against 
the  insurance  company  to  recover  the  amount  of  his  insurance  upon 
his  vessel,  and  his  mere  carelessness,  whether  sane  or  insane,  was  no 
defence  to  such  an  action.  It  is  an  unquestioned  rule  of  law  that  an 
insurance  company  cannot  successfully  defend  an  action  upon  its 
policy  to  recover  for  a  loss  by  showing  that  the  insured  destroyed  the 
property  while  insane,  or  that  its  destruction  was  caused  by  the  care- 
lessness of  his  agents  and  servants.  The  liability  of  the  insured  to 
respond  in  damages  for  the  loss  or  destruction  of  the  property  of 
another  owner  stands  upon  different  principles.  Liverpool  S.  Co,  v. 
Phoenix  Insurance  Co.,  129  U.  S.  438;  Karow  v.  Continental  Insur- 
ance Co.  57  Wis.  56. 


I  quite  agree,  and  no  one  in  this  case  has  contended  for  more,  that 
the  defendant  was  bound,  in  the  navigation  and  use  of  the  vessel,  to 
bestow  only  ordinary  care,  to  wit:  Such  care  as  a  reasonably  careful 


652  HILL   V.    CITY   OF   BOSTON.  [CHAP.   XX. 

and  prudent  owner  would  ordinarily  give  to  his  own  vessel.  Such  is 
the  standard  of  care  set  up  for  all  bailees  of  personal  property  for  hire. 
But  what  is  that  standard?  It  is  not  such  care  as  a  lunatic,  a  blind 
man,  a  sick  man,  or  a  man  otherwise  physically  or  mentally  imper- 
fect or  impotent  could  give.  Such  a  man  is  not  the  jural  man  of 
ordinary  prudence,  and  he  does  not  furnish  the  standard.  The 
standard  man  is  no  individual  man,  but  an  abstract  or  ideal  man  of 
ordinary  mental  and  physical  capacity  and  ordinary  prudence.  The 
particular  man  whose  duty  of  care  is  to  be  measured  does  not  furnish 
the  standard.  He  may  fall  below  it  in  capacity  and  prudence,  yet 
the  law  takes  not  account  of  that,  but  requires  that  he  should  come 
up  to  the  standard  and  his  duty  be  measured  thereby. 

So  when  we  have  defined,  as  above,  the  duty  of  care  resting  upon 
the  defendant,  we  have  made  no  progress  in  the  solution  of  the  ques- 
tion here  involved,  for  it  is  conceded  that  he  took  no  care  whatever. 
It  is  sought,  however,  to  excuse  him  because  he  was  insane  and  in- 
capable of  care;  and  the  question,  and,  in  the  end,  the  sole  question 
for  us  to  determine,  is  whether  that  excuse  is  a  good  one ;  and  I  have 
heard  no  argument  to  sustain  it.  It  is  unquestioned  that  an  insane 
person  is  civilly  liable  for  his  active  torts;  and  is  there  then  any 
reason  for  saying  that  he  is  not  liable  for  his  negligent  torts?  To 
uphold  this  judgment,  we  must  engraft  upon  the  general  rule  the 
exception  or  qualification  that  he  is  not  liable  for  his  negligent  torts. 
If  the  defendant  had  taken  a  torch  and  fired  the  vessel,  he  would  have 
been  liable  for  her  destruction,  although  his  act  was  unconscious  and 
accompanied  by  no  free  will.  But  if  he  had  negligently  fired  the 
vessel  and  thus  destroyed  her,  being  incapable  from  his  mental  in- 
firmity from  exercising  any  care,  the  claim  must  be  that  he  would 
not  be  liable.  Such  a  distinction  is  not  hinted  at  in  any  authority, 
has  no  foundation  whatever  in  principle  or  reason,  and  cannot  stand 
with  authorities  I  have  before  cited. 

My  conclusion,  therefore,  is  that  the  judgment  should  be  reversed 
and  a  new  trial  granted,  costs  to  abide  event. 

All  concur,  except  Peckham,  Gray  and  O'Brien,  JJ.,  dissenting. 

Judgment  reversed.'^ 


C.  Corporations. 

HILL  V.  CITY  OF  BOSTON. 

Supreme  Court  of  Massachusetts,  March,  1877.    122  Mass.  344. 

The  case  is  stated  in  the  opinion. 

Gray,  C.  J.    This  is  an  action  of  tort  against  the  city  of  Boston. 

The  plaintiff,  who  sues  by  his  next  frionrl,  offered  to  prove  at  the 

1  ThiH  cam:  after  n  retrial,   was  again  taken  to  the  Court  of  Appeals,   reported 
157  N.  Y.  .'541. 


CHAP.    XX.]  COMMON    ASPECTS.  653 

trial  that  in  May,  1874,  he  was  of  the  age  of  eight  ycarg,  and  was  a 
pupil  attending  a  school  in  Boston,  which  was  one  of  the  public 
schools  which  the  city  was  bound  by  law  to  keep  and  maintain ; 
that  this  school  was  on  the  third  floor  of  the  building  in  which  it  was 
kept;  that  the  staircase  was  winding,  and  the  railing  thereof  so  low 
as  to  be  dangerous;  that  the  city  negligently  constructed  and  main- 
tained the  building,  and  authorized  the  public  schools  to  be  kept 
therein;  and  that  the  plaintiff,  while  going  to  school,  and  being  in 
the  exercise  of  due  care,  fell  over  the  railing  of  the  second  flight  of 
stairs,  and  was  seriously  injured. 

The  plaintiff  also  offered  to  prove  tliat  the  school  committee  of  the 
city,  for  a  long  time  before  the  accident,  knew  the  building  to  be 
dangerous  and  unfit  for  the  purposes  of  a  public  school,  and  had 
been  notified  by  the  teachers  of  the  school  of  the  dangerous  condition, 
and  had  promised  to  repair  the  same,  and  had  neglected  to  do  so. 
But  the  school  committee  is  not  charged  by  law  with  any  duty  of 
erecting  or  constructing  school-houses,  but  only  with  that  of  keeping 
them  in  good  order  when  built,  and  with  the  general  charge  and  man- 
agement of  the  schools,  and  of  procuring  a  suitable  place  for  the 
schools  where  there  is  no  school-house.  The  duty  to  provide  and 
maintain  school-houses,  properly  furnished,  is  imposed  by  general  law 
upon  all  towns  and  cities  in  the  Commonwealth.  Gen.  Sts.  c.  3,  s.  7, 
cl.  17;  c.  38,  ss.  36,  40.  Sts.  1821,  c.  110,  s.  19;  1854,  c.  448,  s.  56. 
The  declaration  does  not  proceed,  and  the  learned  counsel  for  the 
plaintiff  does  not  rely,  upon  any  negligence  of  the  school  committee, 
but  upon  the  negligence  of  the  city  in  improperly  constructing  the 
school-house;  and  the  length  of  time  that  the  condition  of  the  stair- 
case had  existed;  and  been  known  to  the  school  committee,  is  only 
material  as  bearing  upon  the  question  of  negligence  on  the  part  of 
the  city. 

The  question  presented  by  the  report  is,  whether,  upon  so  much  of 
the  evidence  offered  as  is  competent,  the  plaintiff  is  entitled  to  recover ; 
if  he  is,  the  case  is  to  stand  for  trial;  otherwise,  judgment  is  to  be 
entered  for  the  defendant. 

We  had  supposed  it  to  be  well  settled  in  this  Commonwealth  that  no 
private  action,  unless  authorized  by  express  statute,  can  be  main- 
tained against  a  city  for  the  neglect  of  a  public  duty  imposed  upon 
it  by  law  for  the  benefit  of  the  public,  and  from  the  performance  of 
which  the  corporation  receives  no  profit  or  advantage.  But,  it  having 
been  suggested  at  the  argument  that  the  recent  opinions  of  the  Su- 
preme Court  of  the  United  States  tended  to  a  different  result,  the 
respect  due  to  that  high  court,  even  in  matters  in  which  we  are  not 
bound  by  its  decisions,  has  led  us  to  reexamine  the  foundations  upon 
which  our  law  rests,  and,  in  stating  our  conclusion,  to  make  fuller 
reference  to  the  authorities  than  might  under  other  circumstances 
have  been  thought  expedient. 


654  HILL    V.    CITY    OF    BOSTON.  [CHAP.   XX. 

The  question  has  most  commonly  arisen  in  actions  for  defects  in 
highways  and  bridges,  by  reason  of  which  persons  passing  over  them 
have  received  injuries. 

By  the  common  law  of  England,  the  charge  of  repairing  highways 
lay  upon  the  inhabitants  of  the  parish,  of  common  right,  and  could 
rest  upon  other  corporations  or  individuals  only  by  tenure  or  pre- 
scription. Lord  Hale,  in  Austin's  case,  1  Ventr.  183,  189.  Com. 
Dig.  Chimin,  A.  4.  Bac.  Ab.  Highways,  E.  13  Kep.  (ed.  1826)  33, 
note  B.  Bridges  in  highways,  if  "  within  any  city  or  town  corporate," 
were  to  be  repaired  by  the  inhabitants  of  such  city  or  town ;  if  "  with- 
out the  city  or  town  corporate,"  by  the  county;  and  no  other  corpora- 
tion or  private  person  was  bound  to  repair  a  bridge,  unless  by  tenure 
or  prescription.  For  want  of  repair  in  a  private  bridge,  the  person 
entitled  to  a  passage  over  it  might  have  a  remedy  by  writ  de  ponte 
reparando;  but  for  want  of  repair  in  a  public  bridge,  tlie  remedy 
was  by  presentment  or  information  at  the  suit  of  the  King.  "  Where 
it  cannot  be  known  and  proved  what  persons,  lands,  tenements  and 
bodies  politic "  were  bound  to  make  or  repair  a  public  bridge,  the 
St.  of  22  H.  VIII.  c.  5,  provided  a  more  speedy  remedy  to  compel  the 
inhabitants  of  the  city,  town  or  county  to  repair,  by  application  to 
four  justices  of  the  peace.  3  Sts.  of  the  Eealm,  322.  2  Inst.  696- 
703.  Kepair  of  Bridges,  13  Rep.  33.  Eegina  v.  Justices  of  St.  Peter's 
2  Ld.  Eaym.  1249,  1251.    Com.  Dig.  Chimin.  B.  3.    Bac.  Ab.  Bridges. 

Although  the  English  books  contain  numerous  cases  of  indictments 
or  informations  for  neglect  to  repair  highways  and  bridges,  no  in- 
stance has  been  referred  to,  in  the  frequent  discussions  of  the  sub- 
ject in  England  and  in  this  country,  in  which  an  English  court  has 
sustained  a  private  action  against  a  public  or  municipal  corporation 
or  quasi  corporation  for  such  neglect,  except  under  a  statute  expressly 
or  by  necessary  implication  giving  such  a  remedy.  .  .  . 

[The  court  cites  numerous  English  cases,  and  proceeds:] 

The  towns  and  cities  of  Massachusetts  have  been  established  by  the 
Legislature  for  public  purposes  and  the  administration  of  local 
affairs,  and  embrace  all  persons  residing  within  their  respective 
limits. 

At  the  first  settlement  of  the  Colony,  towns  consisted  of  clusters 
of  inhabitants  dwelling  near  each  other,  which,  by  the  effect  of  legis- 
lative acts,  designating  them  by  name,  and  conferring  upon  them  the 
powers  of  managing  their  own  prudential  affairs,  electing  representa- 
tives and  town  officers,  making  by-laws,  and  disposing,  subject  to  the 
paramount  control  of  the  Legislature,  of  unoccupied  lands  within 
th(.'ir  territory,  became  in  effect  municipal  or  qunsi  corporations,  with- 
out any  formal  act  of  incorporation.  Porter  v.  Sullivan,  7  Gray,  441, 
444.  Commonwealth  v.  Roxbury,  9  Gray,  451,  485.  West  Roxbury 
V.  Stoddard,  7  Allen,  158,  169.  Lynn  v.  Nahant,  113  Mass.  433,  448. 
By  some  of  the  earliest  acts  passed  under  the  Province  Charter,  the 


OTTAP.   XX.]  COMMON   ASPECTS.  655 

boundaries  of  all  existing  towns  were  confirmed,  and  towns  were 
empowered  to  assess  and  levy  taxes  for  the  maintenance  and  support 
of  schools  and  of  the  poor,  and  the  defraying  of  other  necessary 
charges  arising  within  the  towns,  and  Avere  declared  to  be  capable  of 
suing  and  being  sued.  Prov.  Sts.  1692-93  (W.  &  M.)  c.  28;  1694-95 
(6  W.  &  M.)  c.  13;  1  Prov.  Laws  (State  ed.)  64,  66,  182;  Anc.  Chart. 
247,  249,  279.  Soon  after  the  adoption  of  the  Constitution  of  the 
Commonwealth,  it  was  for  the  first  lime  expressly  enacted  that  "  the 
inhabitants  of  every  town  within  this  government  are  hereby  declared 
to  be  a  body  politic  and  corporate."  St.  1785,  c.  75,  s.  8.  Eev.  Sts. 
c.  15,  s.  8.  Gen.  Sts.  c.  18,  s.  1.  And  it  has  always  been  recognized 
by  this  court,  even  before  it  was  declared  by  statute,  that  towns,  as 
well  as  counties,  territorial  parishes  and  school  districts,  by  virtue  of 
their  existence  as  quasi  corporations,  were  capable  of  holding  property 
and  making  contracts  for  the  purposes  for  which  they  were  established. 
Windham  v.  Portland,  4  Mass.  384,  389.  Eumford  School  District  v. 
AVood,  13  Mass.  193,  198.  First  Parish  in  Sutton  v.  Cole,  3  Pick. 
232,  240.  Eev.  Sts.  c.  15,  s.  11,  and  Commissioners'  note.  Gen. 
Sts.  c.  18,  s.  9. 

By  the  common  law  of  Massachusetts  and  of  other  New  England 
States,  derived  from  immemorial  usage,  the  estate  of  any  inhabitant 
of  a  county,  town,  or  territorial  parish  or  school  district,  is  liable 
to  be  taken  on  execution  on  a  judgment  against  the  corporation.  5 
Dane  Ab.  158.  Hawkes  v.  Kennebeck,  7  Mass.  461,  463.  Chase  v. 
Merrimack  Bank,  19  Pick.  564,  569.  Gaskill  v.  Dudley,  6  Met.  546. 
Beardsley  v.  Smith,  16  Conn.  368.  In  this  Commonwealth,  payment 
of  such  a  judgment  has  never  been  compelled  by  mandamus  against 
the  corporation,  as  in  other  parts  of  the  United  States.  Dillon  on 
Mun.  Corp.  (2d  ed.)  ss.  446,  686.  Supervisors  v.  United  States,  4 
Wall.  435. 

From  a  very  early  period,  towns  have  been,  by  general  laws,  required 
to  keep  highways  and  bridges  in  repair,  and  made  liable  to  actions 
for  defects  therein  by  persons  sustaining  special  damage  in  their  per- 
sons or  property.  Mass.  Col.  St.  1648,  2  Mass.  Col.  Eec.  229;  Mass. 
Col.  Sts.  (ed.  1672)  12.  Prov.  St.  1693-94  (5  W.  &  M.)  c.  6,  ss  1, 
6;  1  Prov.  Laws  (State  ed.)  136,  137.  Anc.  Chart.  55,  56,  267,  269. 
St.  1786,  c.  81,  ss  1,  7.  Eev.  Sts.  c.  25,  ss  1,  22.  St.  1850,  c.  5.  Gen. 
Sts.  c.  44,  ss.  1,  22.  The  case  of  Horton  v.  Ipswich,  12  Cush.  488, 
cited  for  the  plaintiff,  was  an  action  upon  such  a  statute. 

In  a  case  in  this  court  in  1810,  in  which  an  action  was  main- 
tained against  a  corporation  chartered  to  maintain  a  canal  and  to 
take  tolls  thereon,  for  suffering  its  canal  to  be  out  of  repair,  whereby 
the  plaintiff's  raft  stuck  fast  and  was  injured,  Parsons,  C.  J.,  said, 
that  although  quasi  corporations,  such  as  counties  and  hundreds  in 
England,  and  counties  and  towns  in  this  state,  were  liable  to  informa- 
tion or  indictment  for  a  neglect  of  a  public  duty  imposed  on  them  by 


656  HILL    V.    CITY   OF   BOSTON.  [CHAP.   XX. 

law,  yet  it  was  settled  in  the  case  of  Russell  v.  Men  of  Devon,  2  T.  R. 
6G7,  above  cited,  that  no  private  action  could  ])e  maintained  against 
them  for  a  breach  of  their  corporate  duty,  unless  such  action  was  given 
by  statute.    Eiddle  v.  Proprietors  of  Locks  &  Canals,  7  Mass.  169,  187. 

Two  years  later,  the  question  was  directly  presented  for  judgment, 
in  an  action  at  common  law  against  a  town  for  a  personal  injury 
caused  by  a  defect  in  a  highway,  of  which  the  town  had  not  had  the 
notice  required  to  charge  it  under  the  statute.  It  was  argued  for  the 
plaintiff,  that  none  of  the  objections  which  prevailed  in  Russell  v. 
Men  of  Devon  applied,  because  here  the  town  was  a  corporation 
created  by  statute,  capable  of  suing  and  being  sued,  was  bound  by 
statute  to  keep  the  public  highways  in  repair,  was  called  upon  to 
answer  only  for  its  own  default,  and  had  a  treasury  out  of  which 
judgments  recovered  against  it  might  be  satisfied;  and  that  the  ob- 
jection that  a  multiplicity  of  actions  would  be  the  consequence  of 
levying  the  execution  on  one  or  more  inhabitants  of  the  town  could 
have  no  effect,  because  it  would  equally  apply  to  every  action  against 
a  town  or  parish,  and  yet  such  actions  were  every  day  brought  and 
supported.  But  the  court  arrested  judgment,  saying:  "It  is  well 
settled  that  the  common  law  gives  no  such  action.  Corporations 
created  for  their  own  benefit  stand  on  the  same  ground,  in  this 
respect,  as  individuals.  But  quasi  corporations,  created  by  the  Legis- 
lature for  purposes  of  public  policy,  are  subject,  by  the  common  law, 
to  an  indictment  for  the  neglect  of  duties  enjoined  on  them;  but  are 
not  liable  to  an  action  for  such  neglect,  unless  the  action  be  given  by 
Bome  statute."    Mower  v.  Leicester,  9  Mass.  247,  250. 

Those  cases  have  ever  since  been  considered  as  having  established 
in  this  Commonwealth  the  general  doctrine  that  a  private  action  can- 
not be  maintained  against  a  town  or  other  quasi  corporation,  for  a 
neglect  of  corporate  duty,  unless  such  action  is  given  by  statute. 
White  V.  Phillipston,  10  Met.  108,  110.  Sawyer  v.  Northfield,  7  Cush. 
490,  494.  Bigclow  v.  Randolph,  14  Gray,  541,  543.  And  they  have 
been  approved  and  followed  throughout  New  England.  Adams  v. 
Wiscasset  Bank,  1  Grccnl.  361,  364.  Reed  v.  Belfast,  20  Maine,  246, 
248.  Farnum  v.  Concord,  2  N.  H.  392.  Eastman  v.  Meredith,  36 
N.  H.  284,  297-300.  Hyde  v.  Jamaica,  27  Vt.  443,  457.  State  v. 
Burlington,  36  Vt.  521,  524.  Chidsey  v.  Canton,  17  Conn.  475,  478. 
Taylor  v.  Peckham,  8  R.  I.  349,  352.  [The  court  here  discusses  Bart- 
lett  V.  Crozier,  17  Johns.  439;  Freeholders  of  Sussex  v.  Strader,  3 
Harrison,  108;  Commissioners  of  Highways  v.  Martin,  4  Mich.  557; 
Hamilton  Commissioners  v.  Mighels,  7  Ohio  St.  109;  Eastman  v. 
Meredith,  36  N.  H.  284;  Bigclow  v.  Randolph,  14  Gray,  541]. 

The  fact  that  the  present  action  is  brought  against  the  city  of 
Boston,  and  not  against  a  county  or  town,  does  not,  under  the  Con- 
stitution and  laws  of  this  Commonwealth,  constitute  any  substantial 
distinction. 


CHAP.    XX.]  COMMON    ASPECTS.  657 

In  this  Commonwealth,  an  act  of  the  Legislature  changing  a  town 
into  a  city  has  never  been  considered  as  enlarging  civil  remedies  for 
neglect  of  corporate  duty ;  and  it  has  been  constantly  held  that  a  city, 
like  a  town,  is  not  liable  to  an  action  for  a  defect  in  a  highway,  ex- 
cept so  far  as  the  right  to  maintain  such  an  action  has  been  clearly 
given  by  statute.  Brady  v.  Lowell,  3  Cush.  121.  Harwood  v.  Lowell, 
4  Cush.  310.  Hixon  v.  Lowell,  13  Gray,  59,  64.  Oliver  v.  Worcester, 
102  Mass.  489.  The  same  view  has  been  taken  in  other  New  Eng- 
land States,  and  in  New  Jersey,  Michigan  and  California.  Morgan 
V.  Hallowell,  57  Maine,  375,  378.  Jones  v.  New  Haven,  34  Conn. 
1,  13.  Hewison  v.  New  Haven,  37  Conn.  475.  Pray  v.  Jersey  City,  3 
Vroom,  394.  Detroit  v.  Blackeby,  21  Mich.  84.  Winbigler  v.  Los 
Angeles,  45  Cal.  36. 

Neither  the  act  which  originally  established  the  city  of  Boston, 
St.  1821,  c.  110,  nor  the  act  to  revise  the  city  charter,  St.  1854,  c. 
448,  contains  any  provision  as  to  the  duty  of  the  city  to  repair  high- 
ways, or  to  provide  school-houses.  Each  of  these  duties  depends  upon 
general  laws,  applicable  to  all  cities  and  town  alike. 


Assuming,  therefore,  that  the  form  of  the  staircase  of  school- 
houses  is  not  left  exclusively  to  the  discretion  of  the  city,  and  that 
the  negligence  offered  to  be  proved  at  the  trial  might  be  a  cause  of  in- 
dictment, it  is  quite  clear  that,  according  to  the  statutes  and  de- 
cisions in  this  Commonwealth,  it  affords  no  ground  of  private  action 
against  the  city.  But  it  may  be  convenient,  in  this  connection,  to 
distinguish  some  of  the  principal  cases  in  which  this  court  has  held 
cities  liable  to  actions  of  tort  by  individuals. 

If  a  city  or  town  negligently  constructs  or  maintains  the  bridges  or 
culverts  in  a  highway  across  a  navigable  river,  or  a  natural  water- 
course, so  as  to  cause  the  water  to  flow  back  upon  and  injure  the 
land  of  another,  it  is  liable  to  an  action  of  tort,  to  the  same  extent 
that  any  corporation  or  individual  would  be  liable  for  doing  similar 
acts.  Anthony  v.  Adams,  1  Met.  284,  285.  Lawrence  v.  Fairhaven, 
5  Gray,  110.  Perry  v.  Worcester,  6  Gray,  544.  Parker  v.  Lowell,  11 
Gray,  353.  Wheeler  v.  Worcester,  10  Allen,  591.  So  if  a  city,  by  its 
agents,  without  authority  of  law,  makes  or  empties  a  common  sewer 
upon  the  property  of  another  to  his  injury,  it  is  liable  to  him  in  an 
action  of  tort.  Proprietors  of  Locks  &  Canals  v.  Lowell,  7  Gray, 
223.  Hildreth  v.  Lowell,  11  Gray,  345.  Haskell  v.  New  Bedford, 
108  Mass.  208.  But  in  such  cases,  the  cause  of  action  is  not  neglect 
in  the  performance  of  a  corporate  duty,  rendering  a  public  work  un- 
fit for  the  purposes  for  which  it  is  intended,  but  it  is  the  doing  of  a 
wrongful  act,  causing  a  direct  injury  to  the  property  of  another,  out- 
side of  the  limits  of  the  public  work. 

As   to   common  sewers,   built  by   municipal   authorities   under   a 


658  HILL    V.    CITY   OF   BOSTON.  [CIIAP,   XX. 

power  conferred  by  law,  it  has  been  held,  upon  great  consideration, 
that,  as  the  power  of  determining  where  the  sewers  shall  be  made 
involves  the  exercise  of  a  large  and  quasi  judicial  discretion,  depend- 
ing upon  considerations  affecting  the  public  health  and  general  con- 
venience, therefore  no  action  lies  for  a  defect  or  want  of  sufficiency 
in  the  plan  or  system  of  drainage  adopted  within  the  authority  so 
conferred;  but  that,  as  the  sewer  acts  were  not  made  applicable  to 
any  city,  unless  accepted  by  it,  and,  when  accepted,  and  the  sewers 
built,  vested  in  the  city  the  property  in  the  sewers,  and  authorized 
it  to  assess  the  expense  of  construction  upon  the  lands  immediately 
benefited,  and  as  the  duty  of  constructing  the  sewers  and  keeping 
them  in  repair  was  merely  ministerial,  therefore,  for  neglect  in  the 
construction  or  repair  of  any  particular  sewer,  whereby  private  prop- 
erty was  injured,  an  action  might  be  maintained  against  the  city. 
Gen.  Sts.  c.  48.  Sts.  1841,  c.  115;  1857,  c.  225;  1869,  c.  111.  Child 
V.  Boston,  4  iVllen,  41.  Emery  v.  Lowell,  104  Mass.  13.  Merrifield  v. 
Worcester,  110  Mass.  216. 

The  only  other  cases  in  Massachusetts,  which  need  be  mentioned, 
are  those  in  which  a  city,  holding  and  dealing  with  property  as  its 
own,  not  in  the  discharge  of  a  public  duty,  nor  for  the  direct  and 
immediate  use  of  the  public,  but  for  its  own  benefit,  by  receiving  rents 
or  otherwise,  in  the  same  way  as  a  private  owner  might,  has  been 
held  liable,  to  the  same  extent  as  he  would  be,  for  negligence  in 
the  management  or  use  of  such  property  to  the  injury  of  others. 
Thayer  v.  Boston,  19  Pick,  511.  Oliver  v.  Worcester,  102  Mass.  489. 
The  distinction  between  acts  done  by  a  city  in  discharge  of  a  public 
duty,  and  acts  done  for  what  has  been  called,  by  way  of  distinction, 
its  private  advantage  or  emolument,  has  been  clearly  pointed  out  by 
two  eminent  judges,  while  sitting  in  the  supreme  courts  of  their  re- 
spective states,  who  have  since  acquired  a  wider  reputation  in  the 
Supreme  Court  of  the  Union,  and  by  the  present  Chief  Justice  of 
England.  Nelson,  C.  J.,  in  Bailey  v.  Mayor  &c.  of  New  York,  3  Hill, 
531,  539.  Strong,  J.,  in  Western  Saving  Fund  Society  v.  Phila- 
delphia, 31  Penn.  St.  185,  189.  Cockburn,  C.  J.,  in  Scott  v.  Mayor 
&c.  of  Manchester,  2  H.  &  N.  204,  210. 


[The  court  discusses  numerous  English  cases  and  statutes,  and  pro- 
ceeds:] 

The  result  of  the  English  authorities  is,  tliat  when  a  duty  is  imposed 
upon  a  municipal  corporation  for  the  l)onefit  of  tlie  public,  without 
any  consideration  or  emolument  received  by  the  corporation,  it  is  only 
where  the  duty  is  a  new  one,  and  is  such  as  is  ordinarily  performed 
by  trading  corporations,  that  an  intention  to  give  a  private  action  for 
a  neglect  in  its  performance  is  to  be  presumed. 


CHAP.    XX.]  COMMON   ASPECTS.  659 

[After  discussing  decisions  of  the  United  States  Supreme  Court 
and  the  decisions  of  several  states,  the  court  proceeds:] 

The  result  of  this  review  of  the  American  cases  may  be  summed 
up  as  follows:  There  is  no  case,  in  which  the  neglect  of  a  duty,  im- 
posed by  general  law  upon  all  cities  and  towns  alike,  lias  been  held  to 
sustain  an  action  by  a  person  injured  thereby  against  a  city,  when 
it  would  not  against  a  town.  The  only  decisions  of  the  state  courts, 
in  which  the  mere  grant  by  the  Legislature  of  a  city  charter,  au- 
thorizing and  requiring  the  city  to  perform  certain  duties,  has  been 
held  sufficient  to  render  the  city  liable  to  a  private  action  for  neglect 
in  their  performance,  when  a  town  would  not  bo  so  liable,  are  in  New 
York  since  1850,  and  in  Illinois.  The  cases  in  the  Supreme  Court 
of  the  United  States,  in  which  private  actions  have  been  sustained 
against  a  city  for  neglect  of  a  duty  imposed  upon  it  by  law,  are  of 
two  classes:  1st.  Those  which  arose  under  the  peculiar  terms  of 
special  charters,  in  the  District  of  Columbia,  as  in  Weightman  v. 
Washington,  1  Black,  39,  and  Barnes  v.  District  of  Columbia,  91 
U.  S.  540,  or  in  a  territory  of  the  United  States,  as  in  Nebraska  City 
V.  Campbell,  2  Black,  590.  2d.  Those  which,  as  in  Mayor  &c.  of 
New  York  v.  Sheffield,  4  Wall,  189,  and  Chicago  City  v.  Eobbins,  2 
Black,  418,  arose  in  New  York  or  in  Illinois,  and  in  which  the  general 
liability  of  the  city  was  not  denied  or  even  discussed,  and  apparently 
could  not  have  been,  consistently  with  the  rule  by  which  the  Supreme 
Court  of  the  United  States,  upon  questions  of  the  construction  and 
effect  of  the  Constitution  and  statutes  of  a  state,  follows  the  latest 
decisions  of  the  highest  court  of  that  state,  even  if  like  words  have 
been  differently  construed  in  other  states.  Elmendorf  v.  Taylor,  10 
Wheat.  152,  159.  Christy  v.  Pridgeon,  4  Wall.  196.  Eichmond  v. 
Smith,  15  Wall.  429.  Tioga  Railroad  v.  Blossburg  &  Corning  Eail- 
road,  20  Wall.  137.  State  Eailroad  Tax  Cases,  92  U.  S.  575,  615.  In 
the  absence  of  such  binding  decisions,  we  find  it  difficult  to  reconcile 
the  view,  that  the  mere  acceptance  of  a  municipal  charter  is  to  be 
considered  as  conferring  such  a  benefit  upon  the  corporation  as  will 
render  it  liable  to  private  action  for  neglect  of  the  duties  thereby  im- 
posed upon  it,  with  the  doctrine  that  the  purpose  of  the  creation  of 
municipal  corporations  by  the  state  is  to  exercise  a  part  of  its  powers 
of  government  —  a  doctrine  universally  recognized,  and  which  has 
nowhere  been  more  strongly  asserted  than  by  the  Supreme  Court  of 
the  United  States,  in  the  opinions  delivered  by  Mr.  Justice  Hunt, 
in  United  States  v.  Eailroad  Co.  17  Wall.  322,  329,  and  by  Mr. 
Justice  Clifford,  in  Laramie  v.  Albany,  92  U.  S.  307,  308. 

But,  however  it  may  be  where  the  duty  in  question  is  imposed  by 
the  charter  itself,  the  examination  of  the  authorities  confirms  us  in 
the  conclusioji  that  a  duty,  which  is  imposed  upon  an  incorporated 
city,  not  by  the  terms  of  its  charter,  nor  for  the  profit  of  the  cor- 
poration, pecuniarily  or  otherwise,  but  upon  the  city  as  the  representa- 


660  BOYD    V.    FIRE    INSURANCE    PATROL.  [OHAP.   XX. 

tive  and  agent  of  the  public,  and  for  the  public  benefit,  and  by  a 
general  law  applicable  to  all  cities  and  towns  in  the  Commonwealth, 
and  a  breach  of  which  in  the  case  of  a  town  would  give  no  right  of 
private  action,  is  a  duty  owing  to  the  public  alone,  and  a  breach 
thereof  by  a  city,  as  by  a  town,  is  to  be  redressed  by  prosecution  in 
behalf  of  the  public,  and  will  not  support  an  action  by  an  individual, 
even  if  he  sustains  special  damage  thereby;  and,  according  to  the 
terms  of  the  report,  there  must  be 

Judgment  for  the  defendant. 


BOYD  V.  FIEE  INSUEANCE  PATEOL. 

Supreme  Court  of  Pennsylvania,  October,  1888.     120  Pa.  St.  624. 

This  was  an  action  brought  by  the  widow  and  son  of  Charles  S. 
Boyd,  deceased,  to  recover  damages  for  the  death  of  the  deceased 
caused,  as  alleged  by  the  plaintiff,  by  the  negligence  of  the  defendant's 
servants. 

At  the  trial,  before  a  jury,  it  appeared  that  on  April  25,  1887, 
there  had  been  a  fire  on  Front  Street,  in  the  City  of  Philadelphia. 
The  Fire  Insurance  Patrol,  a  corporation  created  and  sustained  by  the 
insurance  companies  of  the  city,  had  sent  its  patrolmen  there,  and 
they  had  used  heavy  tarpaulins  in  the  fourth  floor  of  this  store.  A 
few  days  after,  on  the  afternoon  of  May  6,  1882,  two  of  these  patrol- 
men, Hutchinson  and  Koochogey,  Avent  with  a  one-horse  wagon  to 
bring  the  tarpaulins  away.  They  folded  them  up  into  bundles  in  the 
fourth  story.  Instead  of  putting  them  on  a  hoist,  which  ran  up  and 
down  a  large  hatchway  immediately  alongside,  and  which  was  worked 
easily  by  the  ropes,  they  determined  to  pitch  them  out  of  the  window 
upon  the  pavement.  Koochogey  was  stationed  on  the  pavement  to 
give  notice  to  passers-by,  so  that  they  might  not  be  struck  by  the 
tarpaulins;  Hutchinson  remained  in  the  fourth  story  to  throw  them 
out.  The  bundles  were  quite  large  and  each  weighed  about  fifty 
pounds. 

A  little  before  three  o'clock  in  the  afternoon,  a  Mr.  Allen  was 
passing  along  on  the  pavement,  when  one  of  the  bundles  was  thrown 
out  by  Hutchinson,  and  the  warning  given  by  Koochogey  so  late,  that 
the  bundle  came  within  a  foot  or  two  of  Mr.  Allen.  A  few  minutes 
after,  Charles  S.  Boyd  came  from  his  store.  No.  19  South  Front  street, 
a  few  doors  above  Coon's  store,  going  down  Front  street.  He  passed 
from  the  pavement  to  the  middle  of  the  street,  as  if  intending  to 
go  to  the  west  side,  but  when  opposite  the  store  of  Young  &  Co., 
which  was  on  the  north  side  of  an  alley,  six  feet  wide  from  curb 
to  cnrb,  Coon's  store  })eing  on  the  south  side  of  this  alley,  he  veered 
to  the  oast  side  to  go  on  the  pavement  in  front  of  Coon's  store.    He 


CHAP.    XX,]  COMMON    ASPECTS.  661 

was  very  near-sighted  and  wore  spectacles;  he  was  walking  rapidly 
and  as  he  stepped  on  the  curb  of  Coon's  pavement,  he  heard  a  cry, 
"Look  out!"  but  it  came  too  late;  a  bundle  of  tarpaulins,  thrown 
or  pushed  out  of  the  window  by  Hutchinson,  struck  him  on  the  back 
and  broke  his  spine,  and  he  died  on  the  following  Friday. 

The  purposes  and  the  nature  of  the  corporation  are  sufficiently  set 
forth  in  the  opinion. 

The  lower  court,  after  giving  instructions  as  to  the  defendant's 
negligence,  the  doctrine  of  respondeat  superior,  and  the  contributory 
negligence  of  the  plaintiff's  intestate,  charged  the  Jury  that  the  de- 
fendant corporation  was  not  a  charitable  corporation,  and  that  if  the 
plaintiff's  intestate  was  killed  by  the  negligence  of  the  defendant's 
servant,  while  in  the  service  and  employ  of  the  defendant,  and  in 
the  course  of  that  employment,  the  defendant  was  liable. 

The  jury  brought  in  a  verdict  for  the  plaintiff  and  the  defendant 
brought  this  writ  of  error.  The  grounds  of  error  are  sufficiently  stated 
in  the  opinion. 

Paxson,  J.  When  this  case  was  here  upon  a  former  writ  of  error 
(see  113  Pa.  269),  we  did  not  decide  the  question  whether  the  Fire 
Insurance  Patrol  was  such  a  corporation  as  to  be  exempt  from  the 
rule  of  respondeat  superior,  for  the  reason  that  we  had  little  before 
us  but  the  charter  itself,  and  that  was  not  regarded  as  sufficient  to 
show  satisfactorily  the  character  of  the  corporation.  The  case  now 
comes  up  to  us  with  additional  light,  and  we  have  no  difficulty  in 
arriving  at  a  conclusion. 

Of  the  forty-two  assignments  of  error  I  shall  discuss  only  six, 
viz:  the  30th  to  the  35th  inclusive.  The  first  five  of-  these  assign- 
ments present,  in  various  forms,  the  question  whether  the  Insurance 
Patrol  is  a  public  charity,  while  the  35th  alleges  that  the  court  be- 
low erred  in  not  giving  the  jury  a  binding  instruction  that  the  de- 
fendant was  not  liable  in  this  action. 

As  disclosed  by  the  charter  "  The  object  of  the  corporation  was  to 
protect  and  save  life  and  property  in  or  contiguous  to  burning  build- 
ings, and  to  remove  and  take  charge  of  such  property  or  any  part 
thereof,  when  necessary."  As  disclosed  by  the  evidence,  it  appears 
to  be  a  corporation  without  capital  stock  or  moneyed  capital ;  that  it 
is  supported  by  voluntary  contributions,  derived  form  different  fire 
insurance  companies;  that  its  object  and  business  is  to  save  life  and 
property  in  or  contiguous  to  burning  buildings;  that  in  saving  and 
protecting  such  property  no  difference  is  made  between  property  in- 
sured and  property  which  is  not  insured;  that  no  profits  or  dividends 
are  made  and  divided  among  the  corporators. 

Passing  by  for  the  present  the  question  of  a  public  charity,  it  seems 
plain  that  this  corporation  might  well  have  been  created  by  the  state 
in  aid  of  the  mimicipal  government  of  the  city  of  Philadelphia.  It 
is  one  of  the  recognized  functions  of  municipal  government,  to  sup- 


662  BOYD    V.    FIRE    INSURANCE    PATROL.  [CIIAP.   XX. 

press  and  extinguish  fires.  For  this  purpose  the  city  has  a  paid  fire 
department,  which  has  taken  the  place  of  the  volunteer  fire  depart- 
ment formerly  in  existence.  It  is  as  much  the  province  or  duty  of 
the  city  to  save  life  and  property  at  fires  as  to  extinguish  such  fires, 
and  the  Fire  Insurance  Patrol  might  well  have  heen  organized  as  an 
auxiliary  to  the  city  government  and  placed  under  its  direct  control. 
That  it  aids  the  city  as  a  volunteer  does  not  alter  the  fact  that  it  is 
still  an  auxiliary  of  the  municipal  government,  performing  functions 
which  that  government  might  properly  perform,  just  as  did  the  old 
volunteer  fire  department. 

Is  the  Insurance  Patrol  a  public  charitable  institution?  The 
learned  court  below  held  that  it  was  not,  upon  the  ground  that  the 
main  object  of  the  institution  was  to  benefit  the  insurance  companies, 
who  were  the  chief  contributors  to  its  funds.  In  other  words,  the 
learned  judge  tested  the  nature  and  character  of  the  institution  by 
the  motives  of  its  contributors. 

Our  conclusion  is  that  the  Fire  Insurance  Patrol  of  Philadelphia 
is  a  public  charitable  institution;  that  in  the  performance  of  its 
duties  it  is  acting  in  aid  and  in  ease  of  the  municipal  government 
in  the  preservation  of  life  and  property  at  fires.  It  remains  to  in- 
quire whether  the  doctrine  of  respondeat  superior  applies  to  it.  Upon 
this  point  we  are  free  from  doubt.  It  has  been  held  in  this  state  that 
the  duty  of  extinguishing  fires  and  saving  property  therefrom  is  a 
public  duty,  and  the  agent  to  whom  such  authority  is  delegated  is  a 
public  agent  and  not  liable  for  the  negligence  of  its  employees.  This 
doctrine  was  affirmed  by  this  court  in  Knight  v.  City  of  Philadelphia, 
15  W.  N.  307,  where  it  was  said:  "We  think  the  court  did  not  com- 
mit any  error  in  entering  judgment  for  the  defendant  upon  the  de- 
murrer. The  members  of  the  fire  department  are  not  such  servants  of 
the  municipal  corporation  as  to  make  it  liable  for  their  acts  or  negli- 
gence. Their  duties  are  of  a  public  character,  and  for  a  high  order 
of  public  benefit.  The  fact  that  this  act  of  assembly  did  not  make  it 
obligatory  on  the  city  to  organize  a  fire  department,  does  not  change 
the  legal  liability  of  the  municipality  for  the  conduct  of  the  mem- 
bers of  the  organization.  The  same  reason  which  exempts  the  city 
from  liability  for  the  acts  of  its  policemen,  applies  with  equal  force 
to  the  acts  of  the  firemen."  And  it  would  seem  from  this  and  other 
cases  to  make  no  difference  as  respects  the  legal  liability,  whether  the 
organization  performing  such  public  service  is  a  volunteer  or  not: 
Jewett  V.  New  Haven,  38  Conn.  379 ;  Russell  v.  Men  of  Devon,  2 
T.  R.  G72;  Feoffees  of  Heriot's  Plospital  v.  Ross,  12  C.  &  F.  506; 
Riddle  v.  Proprietors,  7  Mass.  187;  McDonald  v.  Hospital,  120  Mass. 
432;  Boyd  v.  Insurance  Patrol,  113  Pa.  209.  But  I  will  not  pursue 
this  subject  further,  as  there  is  another  and  higher  ground  upon 
which  our  decision  may  be  placed. 


CHAP.    XX.]  COMMON    ASPECTS.  663 

The  Insurance  Patrol  is  a  public  charity;  it  has  no  property  or 
funds  which  have  not  been  contril)uted  for  the  purposes  of  charity, 
and  it  would  be  against  all  law  and  all  equity  to  take  those  trust 
funds,  so  contributed  for  a  special,  charitable  purpose,  to  compensate 
injuries  inflicted  or  occasioned  by  the  negligence  of  the  agents  or  serv- 
ants of  the  patrol.  It  would  be  carrying  the  doctrine  of  respondeat 
superior  to  an  unreasonable  and  dangerous  length.  That  doctrine 
is  at  best  —  as  I  once  before  observed  —  a  hard  rule.  I  trust  and 
believe  it  will  never  be  extended  to  the  sweeping  away  of  public 
charities;  to  the  misapplication  of  funds,  specially  contributed  for  a 
public  charitable  purpose,  to  objects  not  contemplated  by  the  donors. 
I  think  it  may  be  safely  assumed  that  private  trustees,  having  the 
control  of  money  contributed  for  a  specific  charity,  could  not  in 
case  of  a  tort  committed  by  one  of  their  members,  apply  the  funds 
in  their  hands  to  the  payment  of  a  judgment  recovered  therefor.  A 
public  charity,  whether  incorporated  or  not,  is  but  a  trustee,  and 
is  bound  to  apply  its  funds  in  furtherance  of  the  charity  and  not 
otherwise.  This  doctrine  is  hoary  with  antiquity  and  prevails  alike 
in  this  country  and  in  England,  where  it  originated  as  early  as  the 
reign  of  Edward  V.,  and  it  was  announced  in  the  Year  Book  of  that 
period.  In  the  Feoffees  of  Heriet's  Hospital  v.  Ross,  12  C.  &  F. 
506,  a  person  eligible  for  admission  to  the  hospital  brought  an  action 
for  damages  against  the  trustees  for  the  wrongful  refusal  on  their  part 
to  admit  him.  The  case  was  appealed  to  the  House  of  Lords  when 
it  was  unanimously  held  that  it  could  not  be  maintained.  Lord 
Cottenham  said :  "  It  is  obvious  that  it  would  be  a  direct  violation,  in 
all  cases,  of  the  purpose  of  a  trust  if  this  could  be  done;  for  there 
is  not  any  person  who  ever  created  a  trust  that  provided  for  payment 
out  of  it  of  damages  to  be  recovered  from  those  who  had  the  manage- 
ment of  the  fund.  No  such  provision  has  been  made  here.  There 
is  a  trust,  and  there  are  persons  intended  to  manage  it  for  the  benefit 
of  those  who  are  to  be  the  objects  of  the  charity.  To  give  damages 
out  of  a  trust  fund  would  not  be  to  apply  it  to  those  objects  which  the 
author  of  the  fund  had  in  view,  but  would  be  to  divert  it  to  a  com- 
pletely different  purpose."  Lord  Brougham  said :  "  The  charge  is 
that  the  governors  of  the  hospital  have  illegally  and  improperly  done 
the  act  in  question,  and  therefore,  because  the  trustees  have  violated 
the  statute,  therefore  —  what  ?  Not  that  they  shall  themselves  pay 
the  damages,  but  that  the  trust  fund  which  they  administer  shall 
be  made  answerable  for  their  misconduct.  The  finding  on  this  point 
is  wrong,  and  the  decree  of  the  court  below  must  be  reversed."  Lord 
Campbell :  "  It  seems  to  have  been  thought  that  if  charity  trus- 
tees have  been  guilty  of  a  breach  of  trust,  the  persons  damnified 
thereby  have  a  right  to  be  indemnified  out  of  the  trust  funds.  That 
is  contrary  to  all  reason,  justice  and  common  sense.  Such  a  per- 
version of  the  intention  of  the  donor  would  lead  to  most  inconvenient 


664  BOYD   V.    FIRE   INSURANCE   PATROL.  [CHAP.    XX. 

consequences.  The  trustees  would  in  that  case  be  indemnified  against 
the  consequences  of  their  own  misconduct,  and  the  real  object  of  the 
charity  would  be  defeated.  Damages  are  to  be  paid  from  the  pocket 
of  the  wrong  doer,  not  from  a  trust  fund.  A  doctrine  so  strange,  as 
the  court  below  has  laid  down  in  the  present  case,  ought  to  have  been 
supported  by  the  highest  authority.  There  is  not  any  authority,  not  a 
single  shred  here  to  support  it.  No  foreign  or  constitutional  writer 
can  be  referred  to  for  such  a  purpose."  I  have  quoted  at  some  length 
from  the  opinions  of  these  great  jurists  because  they  express  in  vigor- 
ous and  clear  language  the  law  upon  this  subject.  I  have  not  space 
to  discuss  the  long  line  of  cases  in  England  and  this  country  in  which 
the  above  principle  is  sustained.  It  is  sufficient  to  refer  to  a  few 
of  them  by  name :  Eiddle  v.  Proprietors  of  the  Locks,  7  Mass.  187 ; 
McDonald  v.  Massachusetts  General  Hospital,  120  Mass.  432;  Sher- 
bourne  v.  Yuba  Co.,  21  Cal.  113 ;  Brown  v.  Inhabitants  of  Vinalhaven, 
65  Me.  403;  Mitchell  v.  City  of  Rockland,  52  Me.  118;  City  of  Rich- 
mond V.  Long,  17  Grattan  375;  Ogg  v.  City  of  Lansing,  35  la.  495; 
Murtaugh  v.  City  of  St.  Louis,  44  Mo.  479 ;  Patterson  v.  Penn.  Re- 
form School,  93  "Pa.  339;  Maximillian  v.  Mayor,  63  N.  Y.  160. 

I  am  glad  to  be  able  to  say  that  no  state  in  this  country,  or  in 
the  world,  has  upheld  the  sacredness  of  trusts  with  a  firmer  hand 
than  the  state  of  Pennsylvania.  Not  only  is  a  trustee  for  a  public 
or  private  use  not  permitted  to  misapply  the  trust  funds  committed 
to  his  care,  but  if  he  convert  them  to  his  own  use  the  law  punishes 
him  as  a  thief.  How  much  better  than  a  thief  would  be  the  law 
itself,  were  it  to  apply  the  trust's  funds  contributed  for  a  charitable 
object,  to  pay  for  injuries  resulting  from  the  torts  or  negligence  of 
the  trustee?  The  latter  is  legally  responsible  for  his  own  wrongful 
acts.  I  understand  a  judgment  has  been  recovered  against  the  indi- 
vidual whose  negligence  occasioned  the  injury  in  this  case.  If  we 
apply  the  money  of  the  Insurance  Patrol  to  the  payment  of  this  judg- 
ment, or  of  the  same  cause  of  action,  what  is  it  but  a  misapplication 
of  the  trust  fund;  as  much  so  as  if  the  trustees  had  used  it  in  pay- 
ment of  their  personal  liabilities?  It  would  be  an  anomaly  to  send 
a  trustee  to  the  penitentiary  for  squandering  trust  funds  in  private 
speculations,  and  yet  permit  him  to  do  practically  the  same  thing 
by  making  it  liable  for  his  torts.  If  the  principle  contended  for  here 
were  to  receive  any  countenance  at  the  hands  of  this  court,  it  would 
be  the  most  damaging  blow  at  the  integrity  of  trusts  which  has  been 
delivered  in  Pennsylvania.     We  are  not  prepared  to  take  this  step. 

We  are  not  unmindful  of  the  fact  that  it  was  contended  for  the  de- 
fendants in  error  that  the  case  of  Feoffees  of  Heriot's  Hospital  v. 
Robs,  is  in  conflict  with  Mersey  Docks  v.  Gibbs,  L.  R.  1  E.  &  I.  App. 
Cas.  03,  and  Parnaby  v.  Lancaster  Canal  Co.,  11  Ad.  &  E.  233.  I 
am  unable  to  see  any  such  conflict.  The  two  corporations  last  named 
were  evid(;ntly  trading  corporations  and  in  no  proper  sense  public 


CHAP.   XX.]  COMMON   ASPECTS.  665 

charities.  In  regard  to  the  docks,  it  was  said  by  Blackburn,  J.,  at 
page  4G5 :  "  There  are  several  cases  relating  to  cbarities  which  were 
mentioned  at  your  Lordship's  Bar,  but  were  not  much  pressed,  nor,  as 
it  seems  to  us,  need  they  be  considered  now :  for  whatever  may  be 
the  law  as  to  the  exemption  of  property  occupied  for  charitable  pur- 
poses, it  is  clear  that  the  docks  in  question  can  come  witbin  no  such 
exemption." 

I  will  not  consume  time  by  discussing  the  case  of  Glavin  v.  Ehode 
Island  Hospital,  12  E.  I.  141,  which,  to  some  extent,  sustains  the 
opposite  view  of  this  question.  There,  a  hospital  patient  paying 
eight  dollars  per  week  for  his  board  and  medical  attendance,  was  al- 
lowed to  recover  a  verdict  against  the  hospital  for  unskilful  treatment, 
and  it  was  held  that  the  general  trust  funds  of  a  charitable  corpora- 
tion are  liable  to  satisfy  a  judgment  in  tort  recovered  against  it  for  the 
negligence  of  its  officers  or  agents.  It  is  at  least  doubtful,  whether 
under  its  facts  the  case  applies,  and  if  it  does,  we  would  not  be  dis- 
posed to  follow  it  in  the  face  of  the  overwhelming  weight  of  authority 
the  other  way,  and  of  the  sound  reasoning  by  which  it  is  supported. 

The  foregoing  is  little  more  than  a  re-assertion  of  the  views  of 
this  court  as  heretofore  expressed  in  this  case  by  our  brother  Clark: 
See  113  Pa.  269.  Many  of  the  authorities  I  have  referred  to  are 
there  cited  by  him.  We  are  now  more  fully  informed  as  to  the  facts 
of  the  case,  and  can  apply  to  them  the  law  as  indicated  in  the  former 
opinion. 

We  are  all  of  opinion  that  the  Insurance  Patrol  is  not  liable  in 
this  action,  and  the  judgment  against  it  is  therefore 

Reversed. 


5.  Proximate  and  Eemote  Cause. 
SCHEFFEE  v.  EAILEOAD  COMPANY. 

Supreme  Court  of  the  United  States,  October,   1881.     105  U.  S.  249. 

The  case  is  stated  in  the  opinion. 

Mr.  Justice  Miller.  .  .  . 

The  plaintiffs,  executors  of  Charles  Scheffer,  deceased,  brought  this 
action  to  recover  of  the  Washington  City,  Virginia  Midland,  and 
Great  Southern  Eailroad  Company,  damages  for  his  death,  which  they 
allege  resulted  from  the  negligence  of  the  company  while  carrying  him 
on  its  road.  The  defendant's  demurrer  to  their  declaration  was  sus- 
tained, and  to  reverse  the  judgment  rendered  thereon  they  sued  out 
this  writ  of  error. 

The  statute  of  Virginia,  under  which  the  action  was  1)rought,  is, 
as  to  the  question  raised  on  the  demurrer,  identical  with  those  of  all 


666  SCHEFFER    V.    RAILROAD    COMPAXY.  [CHAP.    XX. 

the  other  States,  ^ving  the  right  of  recovery  when  the  death  is 
caused  by  such  default  or  neglect  as  would  have  entitled  the  party  in- 
jured to  recover  damages  if  death  had  not  ensued. 

The  declaration,  after  alleging  the  carelessness  of  the  officers  of 
the  company,  by  which  a  collision  occurred  between  the  train  on 
which  Scheffer  was  and  another  train,  on  the  seventh  day  of  De- 
cember, 1874,  proceeds  as  follows: — 

"  Whereby  said  sleeping-car  v/as  rent,  broken,  torn,  and  shattered, 
and  by  means  whereof  the  said  Charles  Scheffer  was  cut,  bruised, 
maimed,  and  disfigured,  wounded,  lamed,  and  injured  about  his 
head,  face,  neck,  back,  and  spine,  and  by  reason  whereof  the  said 
Charles  Scheffer  became  and  was  sick,  sore,  lame,  and  disordered  in 
mind  and  body,  and  in  his  brain  and  spine,  and  by  means  whereof 
phantasms,  illusions,  and  forebodings  of  unendurable  evils  to  come 
upon  him,  the  said  Charles  Scheffer,  were  produced  and  caused  upon 
the  brain  and  mind  of  him,  the  said  Charles  Scheffer,  which  disease, 
so  produced  as  aforesaid,  baffled  all  medical  skill,  and  continued  con- 
stantly to  disturb,  harass,  annoy,  and  prostrate  the  nervous  system  of 
him,  the  said  Charles  Scheffer,  to  wit,  from  the  seventh  day  of  Decem- 
ber, A.  D.  1874,  to  the  eighth  day  of  August,  1875,  when  said  phan- 
tasms, illusions,  and  forebodings,  produced  as  aforesaid,  overcame  and 
prostrated  all  his  reasoning  powers,  and  induced  him,  the  said  Charles 
Scheffer,  to  take  his  life  in  an  effort  to  avoid  said  phantasms,  il- 
lusions, and  forebodings,  which  he  then  and  there  did,  whereby  and 
by  means  of  the  careless,  unskilful,  and  negligent  acts  of  the  said 
defendant  aforesaid,  the  said  Charles  Scheffer,  to  wit,  on  the  eighth 
day  of  August,  1875,  lost  his  life  and  died,  leaving  him  surviving  a 
wife  and  children." 

The  Circuit  Court  sustained  the  demurrer  on  the  ground  that  the 
death  of  Scheffer  was  not  due  to  the  negligence  of  the  company  in 
the  judicial  sense  which  made  it  liable  under  the  statute.  That 
the  relation  of  such  negligence  was  too  remote  as  a  cause  of  the  death 
to  justify  recovery,  the  proximate  cause  being  the  suicide  of  the  de- 
cedent, —  his  death  by  his  own  immediate  act. 

In  his  opinion  we  concur. 

Two  cases  are  cited  by  counsel,  decided  in  this  court,  on  the  sub- 
ject of  the  remote  and  proximate  causes  of  acts  where  the  liability 
of  tli£  party  sued  depends  on  whether  the  act  is  held  to  be  the  one  or 
the  other;  and,  though  relied  on  by  plaintiffs,  we  think  they  both  sus- 
tain the  judgment  of  the  Circuit  Court. 

The  first  of  these  is  Insurance  Company  v.  Tweed,  7  Wall.  44. 

In  that  case  a  policy  of  fire  insurance  contained  the  usual  clause 
of  exception  from  liability  for  any  loss  which  might  occur  "  by  means 
of  any  invasion,  insurrection,  riot,  or  civil  commotion,  or  any  military 
or  usurped  power,  explosion,  earthquake,  or  hurricane." 

An  explosion  took  place  in  the  Marshall  warehouse,  which  threw 


CHAP.    XX.]  COMMON   ASPECTS.  667 

down  the  walls  of  the  Alabama  warehouse,  —  the  one  insured,  sit- 
uated across  the  street  from  Marshall  warehouse,  —  and  by  this  means, 
and  by  the  sparks  from  the  Eagle  ]\Iill,  also  fired  by  the  explosion, 
facilitated  by  the  direction  of  the  wind,  the  Alabama  warehouse  was 
burned.  This  court  held  that  the  explosion  was  the  proximate  cause 
of  the  loss  of  the  Alabama  warehouse,  where  the  explosion  occurred. 
The  court  said  that  no  new  or  intervening  cause  occurred  between 
the  explosion  and  the  burning  of  the  Alabama  warehouse.  That  if 
a  new  force  or  power  had  intervened,  sufficient  of  itself  to  stand  as 
the  cause  of  the  misfortune,  the  other  must  be  considered  as  too  re- 
mote. 

This  case  went  to  the  verge  of  the  sound  doctrine  in  holding  the 
explosion  to  be  the  proximate  cause  of  the  loss  of  the  Alabama  ware- 
house ;  but  it  rested  on  the  ground  that  no  other  proximate  cause  was 
found. 

In  Milwaukee  &  St.  Paul  Eailway  Co.  v.  Kellogg,  94  U.  S.  469, 
the  sparks  from  a  steam  ferry-boat  had,  through  the  negligence  of  its 
owner,  the  defendant,  set  fire  to  an  elevator.  The  sparks  from  the 
elevator  had  set  fire  to  the  plaintiff's  saw-mill  and  lumber-yard,  which 
were  from  three  to  four  hundred  feet  from  the  elevator.  The  court 
was  requested  to  charge  the  jury  that  the  injury  sustained  by  the 
plaintiff  was  too  remote  from  the  negligence  to  afford  a  ground  for  a 
recovery. 

Instead  of  this,  the  court  submitted  to  the  jury  to  find  "  whether 
the  burning  of  the  mill  and  lumber  was  the  result  naturally  and 
reasonably  to  be  expected  from  the  burning  of  the  elevator;  whether 
it  was  a  result  which  under  the  circumstances  would  not  naturally 
follow  from  the  burning  of  the  elevator,  and  whether  it  was  the  re- 
sult of  the  continued  effect  of  the  sparks  from  the  steamboat,  without 
the  aid  of  other  causes  not  reasonably  to  be  expected." 

This  court  affirmed  the  ruling,  and  in  commenting  on  the  difficulty 
of  ascertaining,  in  each  case,  the  line  between  the  proximate  and  the 
remote  causes  of  a  wrong  for  which  a  remedy  is  sought,  said :  "  It 
is  admitted  that  the  rule  is  difficult.  But  it  is  generally  held  that, 
in  order  to  warrant  a  finding  that  negligence  or  an  act  not  amounting 
to  wanton  wrong  is  the  proximate  cause  of  an  injury,  it  must  appear 
that  the  injury  was  the  natural  and  probable  consequence  of  the 
negligence  or  wrongful  act,  and  that  it  ought  to  have  been  foreseen 
in  the  light  of  the  attending  circumstances."  To  the  same  effect  is 
the  language  of  the  court  in  McDonald  v.  Snelling,  14  Allen  (Mass.) 
290. 

Bringing  the  case  before  us  to  the  test  of  these  principles,  it  pre- 
sents no  difficulty.  The  proximate  case  of  the  death  of  Scheffer  was 
his  own  act  of  self-destruction.  It  was  within  the  rule  in  both  these 
cases  a  new  cause,  and  a  sufficient  cause  of  death. 

The  argument  is  not  sound  which  seeks  to  trace  this  immediate 


668  NEWCOMB    V.    PROTECTIVE   DEPT.  [CllAP.    XX. 

cause  of  the  death  through  the  previous  stages  of  mental  aberration, 
physical  suffering,  and  eight  months'  disease  and  medical  treatment 
to  the  original  accident  on  the  railroad.  Such  a  course  of  possible 
or  even  logical  argument  would  lead  back  to  that  "  great  first  cause 
least  understood,"  in  which  the  train  of  all  causation  ends. 

The  suicide  of  Scheffer  was  not  a  result  naturally  and  reasonably 
to  be  expected  from  the  injury  received  on  the  train.  It  was  not 
the  natural  and  probable  consequence,  and  could  not  have  been  fore- 
seen in  the  light  of  the  circumstances  attending  the  negligence  of 
the  officers  in  charge  of  the  train. 

His  insanity,  as  a  cause  of  his  final  destruction,  was  as  little  the 
natural  or  probable  result  of  the  negligence  of  the  railway  officials, 
as  his  suicide,  and  each  of  these  are  casual  or  unexpected  causes, 
intervening  between  the  act  which  injured  him,  and  his  death. 

Judgment  affirmed. 


NEWCOMB  V.  BOSTON  PEOTECTIVE  DEPAKTMENT. 

Supreme  Court  of  Massachusetts,  January,  1888.     146  ^Mass.  596. 

Tort  for  personal  injuries  occasioned  to  the  plaintiff,  a  cab-driver, 
by  a  collision  between  the  cab  and  a  wagon  of  the  defendant. 

At  the  trial  in  the  Superior  Court,  before  Blodgett,  J.,  evidence 
was  introduced  tending  to  show  that  the  defendant  was  incorporated 
under  the  St.  of  1874,  c.  61,^  for  the  protection  of  life  and  property 
at  fires  in  the  city  of  Boston,  and  that  the  collision  occurred  while  one 
of  its  wagons,  with  its  regular  complement  of  men,  was  responding 
to  a  fire  alarm ;  that  the  wagon  was  proceeding  along  Washington 
Street  in  a  northerly  direction;  that  the  cab,  upon  which  the  plain- 
tiff was  sitting,  was  one  of  several  cabs  standing  in  a  line  upon  the 
easterly  side  of  Washington  Street  between  the  easterly  track  of  a 
street  railway  and  the  curbstone;  that  the  plaintiff's  cab  and  horse 
were  not  drawn  up  lengtliwise  of  the  street  and  as  near  as  possible 
to  the  curbstone,  but  that  the  horse  was  facing  the  sidewalk  at  an 
angle  so  that  the  body  of  the  cab  projected  eighteen  or  twenty  inches 
into  the  street  beyond  the  line  of  the  other  cabs;  and  that  the  wagon 
of  the  defendant  was  driven  negligently  into  the  cab,  causing  the 
accident. 

The  defendant  asked  the  judge  to  instruct  the  jury  as  follows: 

'  Rprtlon  3  of  this  statnte  is  as  follows  :  —  "  The  officers  and  men  of  the  Boston 
Proteftlvft  Iteriartment.  with  their  teams  and  apiiaratus,  shall  have  the  risht  of 
way,  while  tJolriK  <<>  a  fire.  |hr(iiii,'ti  any  stfcet,  lane,  or  alley  in  the  city  of  Boston, 
Bnlijeet  to  Hiich  rnles  and  refiulations  as  the  city  cDiincil  and  the  lire  commissioners 
may  prescrilie,  jiiid  subject  also  to  th(^  rl^^hls  of  the  I5oston  Kire  Department:  and 
nnv  violation  of  the  street  rights  of  the  I'.oston  Protective  Deparlmeiit  shall  he 
Dunlshed  In  thr?  same  manner  as  is  [imvidcd  for  the  punishment  of  violations  of 
the  rlk'htH  of  the  P.ostim  l'"lre  Itepartment  In  chapter  three  hundred  and  seventy- 
four  of  the  Acts  of  eighteen  hundred  and  seventy-three." 


CHAP.   XX.]  COMMON   ASPECTS.  669 

"  1.  If  the  plaintiff,  at  the  time  of  the  accident,  was  violating  the 
ordinance  of  the  city  of  Boston,  to  wit,  '  Every  owner,  driver,  or  other 
person  having  the  care  and  ordering  of  a  vehicle  shall,  wlien  stopping 
in  a  street,  place  his  vehicle  and  the  horse  or  horses  connected  there- 
with lengthwise  with  the  street,  as  near  as  possible  to  the  sidewalk,' 
that  was  an  unlawful  act,  and  he  cannot  recover  in  this  action.  2.  If 
that  unlawful  act  contributed  to  cause  the  alleged  injury,  the  plain- 
tiff was  not  in  the  exercise  of  due  care,  and  therefore  he  cannot  main- 
tain this  action.  3.  Under  section  3,  chapter  61,  of  the  Acts  of  1874, 
'  The  officers  and  men  of  the  Boston  Protective  Department,  with 
their  teams  and  apparatus,  shall  have  the  right  of  way,  while  going 
to  a  fire,  through  any  street,  lane,  or  alley  in  the  city  of  Boston,'  said 
defendant  is  not  liable  for  an  accident  caused  by  the  collision  of  one 
of  its  teams,  while  going  to  a  fire,  with  a  vehicle  standing  in  the 
streets,  in  violation  of  either  of  the  city  ordinances.  4.  If  the  plain- 
tiff, at  the  time  of  the  action,  was  violating  the  ordinance  of  the 
city  of  Boston,  to  wit,  '  Every  driver  of  a  vehicle  shall  remain  near  it 
while  it  is  unemployed  or  standing  in  a  street,  unless  he  is  necessarily 
absent  in  the  course  of  his  duty 'and  business,  and  he  shall  so  keep 
his  horse  or  horses  and  vehicle  as  not  to  obstruct  the  streets,'  that  was 
an  unlawful  act,  and  he  cannot  recover  in  this  action.  5.  If  that 
unlawful  act  contributed  to  cause  the  alleged  injury,  the  plaintiff 
was  not  in  the  exercise  of  due  care,  and  therefore  he  cannot  maintain 
this  action." 

The  judge  refused  to  give  these  instructions,  but  instructed  the 
jury  as  to  the  effect  of  a  violation  of  the  ordinance  as  to  the  position 
of  a  vehicle  and  horse  while  standing  in  a  street,  stating  that  the  rule 
was  applicable  to  both  ordinances,  as  follows: 

"  Bearing  in  mind  the  provision  of  the  regulation  as  to  the  posi- 
tion of  a  vehicle  when  not  in  motion,  I  instruct  you  as  to  the  law, 
that  if,  at  the  time  of  the  injury  to  the  plaintiff,  he  allowed  his  car- 
riage to  stand  in  the  street  in  violation  of  this  ordinance,  such  viola- 
tion is  evidence  of  negligence  on  his  part;  and,  if  such  negligence 
directly  contributed  to  the  injury,  the  plaintiff  cannot  maintain  the 
action.  It  cannot  be  said,  as  matter  of  law,  that  the  fact  that  tlie 
plaintiff  was  violating  a  city  ordinance  necessarily  shows  negligence 
that  contributed  to  the  injury.  Whether  the  position  of  the  plain- 
tiff's horse  and  carriage,  in  violation  of  an  ordinance,  did  or  did  not 
contribute  to  the  injury,  is  a  question  of  fact  for  the  jury;  and  in 
determining  this  question,  the  jury  will  take  into  consideration  all 
the  surrounding  facts  and  circumstances.  .  .  .  The  plaintiff  must 
prove  that  his  position  was  not  so  carelessly  taken  as  to  contribute  to 
the  collision ;  and  the  fact  that  his  position  was  in  violation  of  the 
ordinance  is  not  conclusive  proof  of  negligence  which  contributed  to 
the  injury.  Or,  stating  the  general  rule  in  a  somewhat  different  form, 
the  fact  that  the  plaintiff  is  engaged  in  violating  the  law  does  not 


670  NEWCOMB    V.    PROTECTIVE   DEPT.  [CHAP.   XX. 

prevent  him  from  recovering  damages  of  the  defendant  for  an  injury 
which  the  defendant  coukl  have  avoided  by  the  exercise  of  ordinary 
care,  unless  the  unlawful  act  contrilmted  proximately  to  produce  the 
injury.  ...  If,  applying  these  rules,  you  are  of  the  opinion  that 
there  was  no  negligence,  in  other  words,  no  carelessness,  on  the  part 
of  the  plaintiff,  which  directly  contributed  to  the  injury,  then  the 
plaintiff  is  entitled  to  maintain  this  action,  if  he  proves  another 
proposition;  and  as  to  that,  the  burden  is  upon  him.  And  that 
proposition  is,  that  the  defendant's  servants,  in  the  care  and  manage- 
ment of  this  wagon,  at  the  time  the  plaintiff  was  injured,  were  negli- 
gent." 

The  jury  returned  a  verdict  for  the  plaintiff;  and  the  defendant 
alleged  exceptions. 

Knowlton,  J.  The  plaintiff  brought  his  action  to  recover  for  in- 
juries received  while  sitting  upon  his  cab,  from  the  negligent  driving 
of  a  wagon  against  it  by  a  servant  of  the  defendant  corporation. 
There  was  evidence  tending  to  show  that,  at  the  time  of  the  accident, 
he  was  violating  an  ordinance  of  the  city  of  Boston,  by  waiting  in  a 
street  without  placing  his  vehicle  and  horse  lengthwise  with  the 
street,  as  near  as  possible  to  the  sidewalk,  and  that  this  illegal  conduct 
contributed  to  the  injury.  There  was  evidence  applicable  in  like 
manner  to  another  similar  ordinance,  which  requires  every  driver  of  a 
vehicle  standing  in  a  street  so  to  keep  his  horse  or  horses  and  vehicle 
as  not  to  obstruct  the  streets. 

As  to  the  alleged  violation  of  each  of  these  ordinances,  the  defend- 
ant asked  the  court  to  instruct  the  jury  as  follows :  "  If  that  un- 
lawful act  contributed  to  cause  the  alleged  injury,  the  plaintiff  was 
not  in  the  exercise  of  due  care,  and  therefore  he  cannot  maintain 
this  action."  The  presiding  judge  declined  to  give  this  instruction, 
and  gave  none  which  we  deem  to  be  equivalent  to  it.  He  instructed 
the  jury  in  these  words :  "  If,  at  the  time  of  the  injury  to  the  plain- 
tiff, he  allowed  his  carriage  to  stand  in  the  street  in  violation  of  this 
ordinance,  such  violation  is  evidence  of  negligence  on  his  part;  and, 
if  such  negligence  directly  contributed  to  tlic  injury,  the  plaintiff 
cannot  maintain  the  action.  It  cannot  be  said,  as  matter  of  law,  that 
the  fact  that  the  plaintiff  was  violating  a  city  ordinance  necessarily 
shows  negligence  that  contributed  to  the  injury."  In  another  part 
of  the  charge  it  was  indirectly  intimated  that,  if  the  plaintiff's  unlaw- 
ful act  contributed  proximately  to  produce  the  injury,  he  could  not 
recover,  but  it  was  nowhere  expressly  stated. 

The  question  before  us  then  is,  whether  or  not  the  defendant  was 
entitled  to  this  instruction,  —  in  other  words,  whether,  if  the  plain- 
tiff's unlawful  act  contributed  to  cause  his  injury,  it  was  a  bar  to 
his  recovery,  or  merely  evidence  of  negligence  which  might  or  might 
not  bar  him,  according  to  the  view  which  the  jury  should  take  of 
his  conduct  as  a  wJiolo,  in  its  relation  to  llic  accident. 


CHAP.   XX.]  COMMON   ASPECTS.  671 

It  has  often  been  held  that  a  violation  of  law  at  the  time  of  an  ac- 
cident, by  one  connected  with  it,  is  evidence  of  his  negligence,  but 
not  conclusive.  Ilanlon  v.  South  Boston  Horse  Railroad,  121)  ^lass. 
310.  Hall  V.  Eipley,  119  Mass.  135.  Damon  v.  Scituate,  119  Mass. 
66.  In  recent  times  a  large  number  of  penal  statutes  have  been 
enacted,  in  which  the  Legislature  has  seen  fit  to  punish  acts  which 
are  not  mala  in  se,  and  sometimes  when  in  a  given  case  there  is  no 
actual  criminal  intent.  On  grounds  of  public  policy,  laws  have  been 
passed  under  which  a  person  is  bound  to  know  the  facts  in  regard 
to  the  subject  with  which  he  is  dealing,  when  under  possible  circum- 
stances ignorance  would  not  be  inconsistent  with  proper  care.  One 
who  sells  milk  must  know  that  it  is  not  adulterated.  An  unlicensed 
person  must  know  that  what  he  sells  is  not  intoxicating  liquor.  Com- 
monwealth V.  Boynton,  3  Allen,  160.  And  if  in  a  possible  case  he 
trespasses  in  innocent  ignorance,  the  law  gives  him  no  relief.  He  can 
only  appeal  to  the  sense  of  justice  and  the  discretion  of  the  public 
authorities  to  save  him  from  the  punishment  which  the  law  would  in- 
flict. It  is  obvious  that  in  suits  for  negligence,  if  the  contributing 
conduct  of  the  plaintiff  is  to  be  considered  as  a  whole,  it  may  some- 
times be  found  that  he  has  not  been  guilty  of  actual  negligence  or  fault, 
although  he  has  violated  the  law.  One  element  of  his  action  may  be 
neglect  of  a  duty  prescribed  by  a  statute,  when  there  are  other  con- 
curring elements  which  show  that  his  course  was  entirely  justifiable. 

As  a  general  rule,  in  deciding  a  question  in  relation  to  negligence, 
each  element  which  enters  as  a  factor  into  one's  act  to  give  it  character 
is  to  be  considered  in  connection  with  every  other,  and  the  result  is 
reached  by  considering  all  together.  But,  for  reasons  which  will 
presently  appear,  illegal  conduct  of  a  plaintiff  directly  contributing 
to  the  occurrence  on  which  his  action  is  founded,  is  an  exception  to 
this  rule.  Such  illegality  may  be  viewed  in  either  of  two  aspects: 
looking  at  the  transaction  to  which  it  pertains  as  a  whole,  it  may  be 
considered  as  a  circumstance  bearing  upon  the  question  whether 
there  was  actual  negligence;  or  looking  at  it  simply  in  reference  to 
the  violated  law,  the  act  may  be  tried  solely  by  the  test  of  that  law. 
In  the  latter  aspect  it  wears  a  hostile  garb,  and  an  inquiry  is  at  once 
suggested,  whether  the  plaintiff,  as  a  transgressor  of  the  law,  is  in  a 
position  to  obtain  relief  at  the  hand  of  the  law.  In  the  first  view, 
the  illegal  conduct  comes  within  the  general  rule  just  stated;  in  the 
second,  it  does  not.  This  distinction  has  not  always  been  observed. 
A  plaintiff's  violation  of  law  has  usually  been  discussed  in  connection 
with  the  subject  of  due  care. 

In  Bosworth  v.  Swansey,  10  Met.  363,  Chief  Justice  Shaw,  after 
referring  to  the  rule  that  a  plaintiff  must  be  free  from  "  imputation 
of  negligence  or  fault,"  says,  in  reference  to  unlawful  travelling  on 
the  Lord's  day,  "  This  would  be  a  species  of  fault  on  his  part,  which 
would  bring  him  within  the  principle  of  the  cases  cited." 


672  NEWCOMB    V.   PROTECTIVE   DEPT.  [CHAP.   XX. 

In  Jones  v.  Andover,  10  Allen,  18,  Chief  Justice  Bigelow  says, 
"  The  term  '  due  care,'  as  usually  understood  in  cases  where  the  gist  of 
the  action  is  the  negligence  of  the  defendant,  implies  not  only  that  a 
party  has  not  been  negligent  or  careless,  but  that  he  has  been  guilty 
of  no  violation  of  law  in  relation  to  the  subject  matter  or  trans- 
action which  constitutes  the  cause  of  action." 

In  Steele  v.  Burkhardt,  104  Mass.  59,  an  action  for  negligence  in 
driving  against  the  plaintiffs'  horse,  which  was  left  standing  in  a 
street  in  violation  of  an  ordinance,  Chief  Justice  Chapman  considers 
the  general  subject  of  the  plaintiffs'  due  care,  and  then  treats  par- 
ticularly the  contention  of  the  defendant  that  the  plaintiffs  were  com- 
pelled to  prove  their  violation  of  law  in  order  to  establish  their 
case. 

McGrath  v.  Merwin,  112  Mass.  467,  was  an  action  founded  on  the 
defendant's  alleged  negligence  in  starting  the  machinery  of  a  mill, 
while  the  plaintiff  was  at  work  in  the  wheel-pit  making  repairs  on 
the  Lord's  day,  and  Mr.  Justice  Morton,  in  delivering  the  opinion, 
deals  with  the  case  solely  upon  the  principle  that  courts  will  not  aid 
a  plaintiff  whose  action  is  founded  upon  his  own  illegal  act,  and  says, 
"  The  decisions  in  this  Commonwealth  are  numerous  and  uniform  to 
the  effect  that  the  plaintiff,  being  engaged  in  a  violation  of  law,  can- 
not recover,  if  his  own  illegal  act  was  an  essential  element  of  his 
case  as  disclosed  upon  all  the  evidence."  He  further  states  the  rule 
in  such  cases  to  be,  that,  "  if  the  illegal  act  of  the  plaintiff  contributed 
to  his  injury,  he  cannot  recover;  but  though  the  plaintiff  at  the 
time  of  the  injury  was  acting  in  violation  of  law,  if  his  illegal  act  did 
not  contribute  to  the  injury,  but  was  independent  of  it,  he  is  not 
precluded  thereby  from  recovering." 

In  Davis  v.  Guarnieri,  45  Ohio  St.  470,  Owen,  C.  J.,  states,  as  the 
second  of  three  considerations  upon  which  the  doctrine  of  contributory 
negligence  is  founded,  "  the  principle  which  requires  every  suitor  who 
seeks  to  enforce  his  rights  or  redress  his  wrongs  to  go  into  court  with 
clean  hands,  and  which  will  not  permit  him  to  recover  for  his  own 
wrong." 

No  case  has  been  brought  to  our  attention,  and  upon  careful  in- 
vestigation we  have  found  none,  in  which  a  plaintiff  whose  violation 
of  law  contributed  directly  and  proximately  to  cause  him  an  injury 
has  been  permitted  to  recover  for  it;  and  the  decisions  are  numerous 
to  the  contrary.  Hall  v.  Biplcy,  119  Mass.  135;  Banks  v.  Highland 
Street  Railway,  13fi  Mass.  485;  Tuttle  v.  Lawrence,  119  Mass.  276, 
278;  Lyons  v.  Desotclle,  124  Mass.  387;  Heland  v.  Lowell,  3  Allen, 
407;  Steele  v.  Burkhardt,  104  Mass.  59;  Damon  v.  Scituate,  119  Mass. 
66;  Marble  v.  Ross,  124  Mass.  44;  Smith  v.  Boston  &  Maine  Rail- 
road, 120  ]\Tass.  490.  And  it  is  quite  immaterial  wlictlior  or  not  a 
plaintiff's  unlawful  act  contributing  to  his  injury  is  negligent  or 
wrong  when  considered  in  all  its  relations.     He  is  precluded  from 


CHAP.   XX.]  COMMON   ASPECTS.  673 

recovering,  on  the  ground  tliat  the  court  will  not  lend  its  aid  to  one 
whose  violation  of  law  is  the  foundation  of  his  claim.  Hall  v.  Cor- 
coran, 107  Mass.  251. 

While  this  principle  is  universally  recognized,  there  is  great  prac- 
tical difficulty  in  applying  it.  The  best  minds  often  differ  upon  the 
question  whether,  in  a  given  case,  illegal  conduct  of  a  plaintiff  was 
a  direct  and  proximate  cause  contributing  with  others  to  his  injury, 
or  was  a  mere  condition  of  it;  or,  to  state  the  question  in  another 
way,  appropriate  to  the  reason  of  the  rule,  whether  or  not  his  own 
illegal  act  is  an  essential  element  of  his  case  as  disclosed  upon  all  the 
evidence.  Upon  this  point  it  is  not  easy  to  reconcile  the  cases.  It 
has  been  unanimously  decided  that  in  Gregg  v.  Wyman,  4  Cush.  322, 
there  was  error  in  holding  a  plaintiff's  illegal  conduct  to  be  an  es- 
sential element  of  his  case,  when  in  fact  it  was  merely  incidental  to 
it.  Hall  V.  Corcoran,  ubi  supra.  But  whatever  criticisms  may  have 
been  made  upon  the  decisions  or  the  assumptions  in  certain  cases, 
that  illegal  action  of  a  plaintiff  contributed  to  the  result,  or  was 
to  be  treated  as  a  concurring  cause,  or  upon  language  in  disregard 
of  the  distinction  between  a  cause  and  a  condition,  there  has  been  none 
upon  the  doctrine  that,  when  a  plaintiff's  illegal  conduct  does  directly 
contribute  to  his  injury,  it  is  fatal  to  his  recovery  of  damages.  Baker 
V.  Portland,  58  Maine,  199;  Norris  v.  Litchfield,  35  N".  H.  271; 
Sutton  V.  Wauwatosa,  29  Wis.  21. 

The  plaintiff  relies  with  great  confidence  upon  the  case  of  Hanlon 
V.  South  Boston  Horse  Eailroad,  129  Mass.  310,  in  which  the  pre- 
siding judge  at  the  trial  refused  to  rule,  that,  "  if  the  defendant  was 
driving  at  a  rate  of  speed  prohibited  by  the  ordinance  of  the  city  of 
Boston,  and  this  speed  contributed  to  the  injury,  this  fact  would  itself 
constitute  negligence  on  the  part  of  the  defendant,  and  would  entitle 
the  plaintiff  to  recover  if  he  was  in  the  exercise  of  due  care,"  and  his 
refusal  was  held  right  by  this  court.  In  giving  the  opinion,  after 
pointing  out  that  driving  at  a  rate  of  speed  forbidden  by  the  ordi- 
nance might  have  occurred  without  fault  of  the  driver,  and  might  have 
been  justified  by  circumstances  authorizing  the  jury  to  find  that 
there  was  no  negligence,  Mr.  Justice  Colt  said,  "  It  is  not  true  that, 
if  an  unlawful  rate  of  speed  contributed  to  the  injury,  that  alone 
would  give  the  plaintiff  a  right  to  recover,  if  he  was  without  fault." 
There  are  intimations,  without  adjudication,  to  the  same  effect,  in 
Wright  V.  Maiden  &  Melrose  Railroad,  4  Allen,  283,  and  in  Lane  v. 
Atlantic  Works,  111  Mass.  136.  See  also  Kirby  v.  Boylston  Market 
Association,  14  Gray,  249;  Heeney  v.  Sprague,  11  R.  I.  456;  Brown 
V.  Buffalo  &  State  Line  Railroad,  22  N.  Y.  191 ;  Flynn  v.  Canton  Co., 
40  Md.  312. 

But  there  is  nothing  in  the  language  used  in  Hanlon  v.  South 
Boston  Horse  Railroad  inconsistent  with  the  principle  which  we  have 
already  stated.     That  decision  related  to  the  liability  of  a  defendant. 


674  NEWCOMB    V.   PROTECTIVE   DEPT.  [CHAP.   XX. 

It  may  be,  where  a  penal  statute  does  not  purport  to  create  a  civil 
liability,  or  to  protect  the  rights  of  particular  persons,  that  a  viola- 
tion of  it  will  not  subject  the  violator  to  an  action  for  damages,  unless 
his  act,  when  viewed  in  connection  with  all  the  attendant  circum- 
stances, appears  to  be  negligent  or  wrongful.  And  at  the  same  time 
courts  may  well  hold  that,  in  the  sanctuary  of  the  law,  a  violator  of 
law  imploring  relief  from  the  consequences  of  his  own  transgression 
will  receive  no  favor. 

The  instruction  requested  in  the  case  at  bar  would  have  become 
applicable  only  upon  a  finding  by  the  jury  that  the  plaintiff's  unlawful 
act  contributed  to  cause  the  injury.  The  jury  may  have  so  found; 
and  we  are  of  opinion  that  upon  such  a  finding,  irrespective  of  the 
question  whether  viewed  in  all  its  aspects  his  act  was  negligent  or 
not,  the  court  could  not  properly  permit  him  to  recover.  The  in- 
struction, therefore,  should  have  been  given. 

The  court  rightly  refused  the  instruction  requested,  that  the  plain- 
tiff could  not  recover  if  at  the  time  of  the  accident  he  was  violating 
the  ordinance,  and  so  doing  an  unlawful  act.  This  request  ignored 
the  distinction  between  illegality  which  is  a  cause,  and  illegality  which 
is  a  condition  of  a  transaction  relied  on  by  a  plaintifp,  or  between  that 
which  is  an  essential  element  of  his  case  when  all  the  facts  appear, 
and  that  which  is  no  part  of  it,  but  only  an  attendant  circumstance. 
The  position  of  a  vehicle,  which  has  been  struck  by  another,  may  or 
may  not  have  been  one  of  the  causes  of  the  striking.  Of  course  it 
could  not  have  been  struck  if  it  had  not  been  in  the  place  where  the 
blow  came.  But  this  is  a  statement  of  an  essential  condition,  and 
not  of  a  cause  of  the  impact.  The  distinction  is  between  that  which 
directly  and  proximately  produces,  or  helps  to  produce,  a  result  as  an 
efficient  cause,  and  that  which  is  a  necessary  condition  or  attendant 
circumstance  of  it.  If  the  position  of  the  plaintiff's  vehicle  was  such 
as,  in  connection  with  ordinary  and  usual  concurring  causes,  would 
naturally  produce  such  an  accident,  that  indicates  that  it  contributed 
to  it.  But,  even  in  that  case,  external  causes  may  have  been  so  ex- 
clusive in  their  operation,  and  so  free  from  any  relation  to  the  posi- 
tion of  the  vehicle,  as  to  have  left  that  a  mere  condition,  without 
agency  in  producing  the  result.  What  is  a  contributing  cause  of  an 
accident  is  usually  a  question  for  a  jury,  to  be  determined  by  the 
facts  of  the  particular  case ;  and  such  it  has  been  held  to  be  in  many 
cases  like  the  one  before  us.  Damon  v.  Scituate,  119  Mass.  66 ;  Hall 
V.  Ripley,  119  Mass.  135;  Welch  v.  Wesson,  6  Gray,  505;  Spofford  v. 
Harlow,  3  Allen,  17G;  White  v.  Lang,  128  Mass.  598;  Baker  v.  Port- 
land, 58  Maine,  199;  Norris  v.  Litchfield,  35  N.  H.  271;  Sutton  v. 
Wauvvatosa,  29  Wis.  21. 

The  defendant's  third  request  for  an  instruction  was  rightly  re- 
fused, for  reasons  which  have  already  been  stated.  The  statute 
referred  to  does  not  relieve  the  defendant  from  liability  for  negligence 


CHAP.   XX.]  COMMON   ASPECTS.  675 

to  a  plaintiff  whose  unlawful  act  or  want  of  due  care  does  not  con- 
tribute to  his  injury.  In  the  opinion  of  a  majority  of  the  court  the 
entry  must  be 

Exceptions  sustained. 


TERWILLIGER  v.  WANDS. 

Court  of  Appeals  of  New  York,  March,  1858.    17  N.  Y.  54. 

Action  for  slander.  The  plaintiff  proved  by  several  witnesses  that 
the  defendant  had  said  that  the  plaintiff  had  been  guilty  of  lewd  and 
unchaste  conduct  with  one  Mrs.  Fuller. 

One  Neiper,  a  witness  for  the  plaintiff,  testified  that  the  defendant 
had  made  the  charge  concerning  the  plaintiff,  to  him,  Neiper,  in 
May,  1852,  and  that  he  had  repeated  what  the  defendant  said,  to  the 
plaintiff  in  the  same  month. 

One  La  Fayette  Wands  testified  for  the  plaintiff,  that  the  defendant 
made  the  same  charge  concerning  the  plaintiff,  to  him,  and  that  he 
told  the  plaintiff  in  June  of  1853. 

Neiper  further  testified  that  he  was  an  intimate  friend  of  the 
plaintiff's;  that  he  was  present  at  the  time  when  La  Fayette  Wands 
communicated  to  the  plaintiff  what  the  defendant  had  said  to  him. 
Wands,  and  that  the  plaintiff  felt  bad,  and  that  thereafter  the  plain- 
tiff became  melancholy  and  sick,  so  that  he  was  obliged  to  hire  addi- 
tional help  to  carry  on  his  farm.  There  was  further  testimony  that 
from  the  middle  of  June,  1852,  the  plaintiff's  health  failed,  so  that  he 
was  unable  to  work,  and  that  he  required  medical  attendance. 

At  the  close  of  the  plaintiff's  case  the  defendant  moved  for  a  non- 
suit on  the  grounds:  First,  that  the  words  were  not  spoken  by  the 
defendant  to  the  plaintiff,  nor  authorized  by  him  to  be  communicated 
to  the  plaintiff :  Second,  that  there  was  no  evidence  that  the  damages, 
if  any,  were  occasioned  by  the  speaking  of  the  words  by  the  defendant. 
The  court  sustained  the  motion  and  entered  judgment  for  the  defend- 
ant and  the  plaintiff  appealed.  At  the  general  term  this  judgment 
was  affirmed,  and  the  plaintiff  appealed  to  this  court. 

Strong,  J.  The  words  spoken  by  the  defendant  not  being  action- 
able of  themselves,  it  was  necessary  in  order  to  maintain  the  action 
to  prove  that  they  occasioned  special  damages  to  the  plaintiff.  The 
special  damages  must  have  been  the  natural,  immediate  and  legal 
consequence  of  the  words.  Stark,  on  Sland.  by  Wend.  2d  ed.,  203; 
3  Id.  62,  64 ;  Beach  v.  Ranney,  2  Hill,  309 ;  Grain  v.  Petrie,  6  Id.  523 ; 
Kendall  v.  Stone,  1  Seld.  14.  WTiere  words  are  spoken  to  one  person 
and  he  repeates  them  to  another,  in  consequence  of  which  the  party 
of  whom  they  are  spoken  sustains  damages,  the  repetition  is,  as  a 
general  rule,  a  wrongful  act,  rendering  the  person  repeating  them 


676  TERWILLIGER   V.    WANDS.  [cHAP.   XX. 

liable  in  like  manner  as  if  lie  alone  had  uttered  them.  The  special 
damages  in  such  a  case  are  not  a  natural,  legal  consequence  of  the 
first  speaking  of  the  words,  but  of  the  wrongful  act  of  repeating  them, 
and  would  not  have  occurred  but  for  the  repetition;  and  the  party 
who  repeats  them  is  alone  liable  for  the  damages.  Ward  v.  Weeks,  7 
Bing.  211;  Hastings  v.  Palmer,  20  Wend.  225;  Keenholts  v.  Becker, 
3  Denio,  346;  Stevens  v.  Hartwell,  11  Met.  542.  These  views  dis- 
pose of  this  case  as  to  the  right  of  action  in  respect  to  all  the  words 
but  those  spoken  to  the  witness  Neiper,  as  none  of  them  were  spoken 
by  the  defendant  in  the  presence  of  the  plaintiff,  or  communicated  to 
the  plaintiff  by  the  witnesses  to  whom  they  were  spoken  by  the  de- 
fendant; and  there  is  no  proof  as  to  the  circumstances  under  which 
they  were  repeated  by  those  witnesses.  In  the  absence  of  evidence 
of  those  circumstances,  the  general  rule,  that  a  repetition  of  slander- 
ous words  is  wrongful,  applies;  hence  any  damages  which  resulted 
from  repeating  them  are  a  consequence  of  that  wrong,  and  not  a 
natural,  immediate  and  legal  effect  of  the  original  speaking  of  the 
words  by  the  defendant. 

In  regard  to  the  words  spoken  by  the  defendant  to  Neiper,  it  is 
proved  that  they  were  communicated  by  the  latter  to  the  plaintiff, 
and  that  Neiper  was  at  the  time  an  intimate  friend  of  the  plaintiff. 
This  friendly  relation,  it  is  claimed  on  the  part  of  the  plaintiff, 
rendered  the  communication  of  Neiper  to  him  proper;  and,  being  so, 
it  is  insisted  that  the  defendant  is  responsible  for  the  consequences, 
in  the  same  manner  as  if  the  words  had  been  spoken  directly  to  the 
plaintiff.  There  are  several  cases  in  which  it  is  suggested  that  cir- 
cumstances may  exist  which  will  justify  the  repetition  of  slanderous 
words,  and  that  when  repeated  under  such  circumstances,  and  dam- 
ages ensue,  the  first  speaker  may  be  liable  in  like  manner  as  he  would 
be  if  the  injury  had  arisen  from  the  words  without  the  repetition. 
Ward  V.  Weeks,  7  Bing.  211;  Keenholts  v.  Becker,  3  Denio,  346; 
Olmsted  v.  Brown,  12  Barb.  657;  McPherson  v.  Daniels,  10  Barn.  & 
Cress.  263.  Occasions  may  doubtless  occur  where  the  communication 
of  slanderous  words  by  a  person  who  heard  them  will  be  innocent; 
and  it  is  certainly  reasonable  that  when  repeated  on  such  an  occasion 
and  damages  result,  the  first  speaker  should  be  held  responsible  for 
the  damages,  as  flowing  directly  and  naturally  from  his  own  wrong. 
It  is  not  necessary  in  the  present  case  to  decide  whether  the  proposi- 
tion is  law ;  for,  assuming  it  to  be  so,  and  that  illness  and  inability 
to  labor  constitute  such  special  damage  as  will  support  an  action, 
the  evidence  in  this  case  wholly  fails  to  show  that  the  damages  were 
a  consequence  of  the  words  spoken  by  the  defendant  to  Noiper.  The 
proof  is  that  they  were  mainly  the  result  of  the  repetition  of  the 
words  spoken  to  the  witness  Wands,  and  reports  of  other  persons.  It 
was  not  until  a  considerable  time  after  the  plaintiff  was  informed  by 
Neiper  what  the  defendant  had  said  to  the  latter  that  he  began  to  be 


CHAP.    XX.]  COMMON    ASPECTS.  677 

ill;  and  his  illness  commenced  immediately  after  the  communication 
to  him  of  what  had  been  said  by  La  Fayette  Wands.  At  that  time  the 
plaintiff  had  been  informed  of  charges  made  by  Fuller  to  the  same 
effect,  and  it  is  a  fair  conclusion  upon  the  proof  that  he  then  knew  what 
the  witness  Wands  says  was  fact,  that  "  the  story  was  all  over  the 
country."  Under  these  circumstances  it  is  impossible  to  conclude 
that  what  the  defendant  stated  to  Neiper  produced  the  damages. 
Stark,  on  Sland.  205 ;  Vicars  v.  Wilcocks,  8  East.,  1 ;  Grain  v.  Petrie, 
6  Hill.,  522. 

But  there  is  another  ground  upon  which  the  judgment  must  be 
affirmed.  The  special  damages  relied  upon  are  not  of  such  a  nature 
as  will  support  the  action.  The  action  for  slander  is  given  by  the 
law  as  a  remedy  for  "  injuries  affecting  a  man's  reputation  or  good 
name  by  malicious,  scandalous  and  slanderous  words,  tending  to  his 
damage  and  derogation."  3  Bl.  Com.,  123 ;  Stark,  on  Sland.,  Prelim. 
Obs.  22-29 ;  1  Id.  17,  18.  It  is  injuries  affecting  the  reputation  only 
which  are  the  subject  of  the  action.  In  the  case  of  slanderous  words 
actionable  per  se,  the  law,  from  their  natural  and  immediate  tendency 
to  produce  injury,  adjudged  them  to  be  injurious,  though  no  special 
loss  or  damage  can  be  proved.  "  But  with  regard  to  words  that  do 
not  apparently  and  upon  the  face  of  them  import  such  defamation 
as  will  of  course  be  injurious,  it  is  necessary  that  the  plaintiff  should 
aver  some  particular  damage  to  have  happened."  3  Bl.  Com.  124.  As 
to  what  constitutes  special  damages,  Starkie  mentions  the  loss  of  a 
marriage,  loss  of  hospitable  gratuitous  entertainment,  preventing  a 
servant  or  bailiff  from  getting  a  place,  the  loss  of  customers  by  a 
tradesman;  and  says  that  in  general  whenever  a  person  is  prevented 
by  the  slander  from  receiving  that  which  would  otherwise  be  con- 
ferred upon  him,  though  gratuitously,  it  is  sufficient.  1  Stark,  on 
Sland.  195,  202;  Cook's  Law  of  Def.  22-24.  In  Olmsted  v.  Miller, 
1  Wend.  506,  it  was  held  that  the  refusal  of  civil  entertainment  at  a 
public  house  was  sufficient  special  damage.  So  in  Williams  v.  Hill, 
19  Wend.  305,  was  the  fact  that  the  plaintiff  was  turned  away  from 
the  house  of  her  uncle  and  charged  not  to  return  until  she  had  cleared 
up  her  character.  So  in  Beach  v.  Eanney,  was  the  circumstance  that 
persons,  who  had  been  in  the  habit  of  doing  so,  refused  longer  to 
provide  fuel,  clothing,  &c.  2  Stark,  on  Ev.,  872,  873.  These  instances 
are  sufficient  to  illustrate  the  kind  of  special  damage  that  must  result 
from  defamatory  words  not  otherwise  actionable  to  make  them  so; 
they  are  damages  produced  by,  or  through,  impairing  the  reputation. 

It  would  be  highly  impolitic  to  hold  all  language,  wounding  the 
feelings  and  affecting  unfavorably  the  health  and  ability  to  labor, 
of  another,  a  ground  of  action;  for  that  would  be  to  make  the  right 
of  action  depend  often  upon  whether  the  sensibilities  of  a  person 
spoken  of  are  easily  excited  or  otherwise;  his  strength  of  mind  to 
disregard  abusive,  insulting  remarks  concerning  him;   and  his  physi- 


678  TEEWILLIGER   V.    WANDS.  [CIIAP.   XX. 

cal  strength  and  ability  to  bear  them.  Words  which  would  make 
hardly  an  impression  on  most"  persons,  and  would  be  thought  by  them, 
and  should  be  by  all,  undeserving  of  notice,  might  be  exceedingly 
painful  to  some,  occasioning  sickness  and  an  interruption  of  ability 
to  attend  to  their  ordinary  avocations.  There  must  be  some  limit  to 
liability  for  words  not  actionable  per  se,  both  as  to  the  words,  and  the 
kind  of  damages;  and  a  clear  and  wise  one  has  been  fixed  by  the  law. 
The  words  must  be  defamatory  in  their  nature;  and  must  in  fact 
disparage  the  character;  and  this  disparagement  must  be  evidenced 
by  some  positive  loss  arising  therefrom  directly  and  legitimately  as 
a  fair  and  natural  result.  In  this  view  of  the  law  words  which  do  not 
degrade  the  character  do  not  injure  it,  and  cannot  occasion  loss. 

...  It  necessarily  follows  from  the  rule  that  the  words  must  be 
disparaging  to  character,  that  the  special  damage  to  give  an  action 
must  flow  from  disparaging  it.  In  the  case  last  cited  ^  the  plaintiff 
actually  suffered  damage  from  the  defendant's  words  by  their  bring- 
ing her  into  disrepute,  but  the  words  were  not  calculated  to  produce 
such  a  result  and  therefore  the  action  would  not  lie.  In  the  present 
case  the  words  were  defamatory,  and  the  illness  and  physical  prostra- 
tion of  the  plaintiff  may  be  assumed,  so  far  as  this  part  of  the  case  is 
concerned,  to  have  been  actually  produced  by  the  slander,  but  this 
consequence  was  not,  in  a  legal  view,  a  natural,  ordinary  one,  as  it 
does  not  prove  that  the  plaintiff's  character  was  injured.  The  slander 
may  not  have  been  credited  by  or  had  the  slightest  influence  upon  any 
one  unfavorable  to  the  plaintiff ;  and  it  does  not  appear  that  any  body 
believed  it  or  treated  the  plaintiff  any  different  from  what  they  would 
otherwise  have  done  on  account  of  it.  The  cause  was  not  adapted 
to  produce  the  result  which  is  claimed  to  be  special  damages.  Such 
an  effect  may  and  sometimes  does  follow  from  such  a  cause  but  not 
ordinarily;  and  the  rule  of  law  was  framed  in  reference  to  common 
and  usual  effects  and  not  those  which  are  accidental  and  occasional. 

It  is  true  that  this  element  of  the  action  for  slander  in  the  case 
of  words  not  actionable  of  themselves  —  that  the  special  damages  must 
flow  from  impaired  reputation  —  has  been  overlooked  in  several 
modern  cases,  and  loss  of  health  and  consequent  incapacity  to  attend 
to  business  held  sufficient  special  damage.  Bradt  v.  Towsley,  13 
Wend.  253 ;  Fuller  v.  Tenner,  IG  Barb.  333 ;  but  these  cases  are  a 
departure  from  principle  and  should  not  be  followed.  If  such  conse- 
quences were  sufficient,  it  would  not  be  necessary  to  allege  in  the 
complaint  or  prove  that  the  words  were  spoken  in  the  presence  of  a 
third  person;  if  spoken  directly  to  the  plaintilT,  in  the  presence  of  no 
one  else,  he  might  himself,  under  the  recent  law  allowing  parties  to 
be  witnesses,  prove  the  words  and  the  damages  and  be  permitted  to 
recover.  It  has  been  regarded  as  necessary  to  an  action  that  the  words 
should  be  published  by  speaking  them  in  ihe  presence  of  some  person 


CHAP.   XX.]  COMMON   ASPECTS.  679 

other  than  the  plaintiff,  both  in  the  case  of  words  actionable  and  those 
not  actionable.  1  Stark,  on  Sland.,  3()0;  2  Id.,  12 ;  Cooke's  L.  of  Def., 
87. 

Where  there  is  no  proof  that  the  character  has  suffered  from  the 
words,  if  sickness  results,  it  must  be  attributed  to  apprehension  of 
loss  of  character,  and  such  fear  of  harm  of  character,  with  resulting 
sickness  and  bodily  prostration  cannot  be  such  special  damage  as  the 
law  requires  for  the  action.  The  loss  of  character  must  be  a  sub- 
stantive loss,  one  which  has  actually  taken  place. 

It  is  not  necessary  to  decide  whether  the  doctrine  which  has  some 
support  in  the  books,  that  a  husband  may  maintain  an  action  for  the 
slander  of  his  wife  producing  sickness  which  prevents  her  attending 
to  her  ordinary  business,  if  it  conflicts  with  the  principle  now  ad- 
vanced, may  be  maintained  upon  some  ground  of  exception  to  the 
general  rule.  It  is  doubtless  true  that  in  such  cases  the  law  regards 
more  the  loss  of  the  wife's  services,  which  alone  entitles  the  husband 
to  sue,  than  the  influence  of  the  words  upon  her  character,  and  the 
husband  has  no  control  over  the  effect  of  the  words;  whereas,  in 
other  cases,  the  injury  to  character,  as  shown  by  the  special  damages, 
is  principally  regarded,  and  unusual  extraordinary  consequences  may 
be  assumed  to  be  in  some  measure  under  the  control  of  the  party 
complaining.  Still,  the  objection  that  special  damages  of  that 
nature  are  not  a  fair,  ordinary,  natural  result  of  such  a  wrong  re- 
mains, and  this  objection  appears  to  be  alike  applicable  and  entitled 
to  the  same  force  whether  the  action  be  brought  by  the  husband  of 
the  party  slandered.  Olmstead  v.  Brown,  12  Barb.  657;  Keenholts  v. 
Becker,  3  Denio,  346. 

EoosEVELT,  J.,  dissented;   all  the  other  judges  concurring. 

Judgment  affirmed. 


MURPHY  &  WIFE  v.  DEANE. 

Supreme  Court  of  Massachusetts,  March,  1869.     101  Mass.  455. 

Action  for  negligence.  "  It  appeared  that  the  defendants  were 
teamsters,  engaged  in  transporting  merchandise  and  freight  in  Bos- 
ton; that,  at  the  time  of  the  injury  to  Mrs.  Murphy,  their  team, 
under  the  charge  and  control  of  Michael  Quinlan,  their  servant,  and 
consisting  of  a  wagon  and  two  horses,  was  backed  up  against  the  side- 
walk, in  front  of  the  warehouse  of  Mixer  &  \\1iitman  in  Broad  Street, 
and  Quinlan  was  engaged  in  the  duty  of  delivering  a  cask  of  oil  into 
the  warehouse,  the  weight  of  which  cask  was  variously  estimated  by 
witnesses,  from  1,700  to  3,000  pounds;  that,  for  the  purpose  of  re- 
moving the  cask  from  the  wagon  into  the  warehouse,  a  pair  of  skids, 
from  twelve  to  fourteen  feet  long,  were  placed  by  Quinlan  from  the 


680  MURPHY    V.   DEANE.  [CIIAP.   XX. 

end  of  the  wagon  at  the  edge  of  the  sidewalk,  (being  there  about  two 
feet  from  the  surface  of  the  sidewalk,)  extending  over  the  sidewalk, 
and  into  the  warehouse  door,  over  the  threshold,  (which  was  from 
eight  to  ten  inches  above  the  sidewalk,)  the  length  of  the  skids  within 
the  warehouse  beyond  the  threshold  being  variously  estimated  by 
witnesses  at  from  six  inches  to  two  feet;  and  that  the  cask  was  to 
be  rolled  down  these  skids  from  the  wagon  into  the  warehouse." 

There  was  evidence  for  the  plaintiff  that  Mrs.  Murphy,  in  passing 
up  Broad  Street  upon  the  sidewalk,  saw  the  team  and  the  skids  as 
above  described;  that  as  she  approached  the  skids  she  saw  three  men, 
one  of  whom  was  between  the  skids  and  one  at  each  end  of  the  cask, 
who  were  ready  to  roll  the  cask  upon  the  skids;  that  she  attempted 
to  go  across  the  skids,  when  she  was  caught  by  the  cask,  thrown  down, 
and  her  hip  broken;  and  that  she  heard  no  warning  against  attempt- 
ing to  pass  the  skids.  There  was  further  evidence  for  the  plaintiff 
that  the  men  could  not  control  the  cask  and  that  if  a  parbuckle  had 
been  used  the  cask  could  have  been  controlled  by  one  man. 

There  was  evidence  for  the  defendant  that  the  men  had  entire 
control  of  the  cask  and  that  one  of  the  defendant's  servants  called 
out  a  warning  to  Mrs.  Murphy;  that  the  cask  was  unloaded  in  the 
usual  manner  of  unloading  casks  of  light  weight. 

The  plaintiffs  asked  the  judge  to  rule  "  that  the  question  for  the 
jury  was,  whether  the  injury  was  occasioned  entirely  by  the  negligence, 
or  improper  conduct  of  the  defendant's  servant,  or  whether  the  female 
plaintiff  herself  so  far  contributed  to  the  misfortune,  by  her  own 
negligence,  or  want  of  ordinary  and  common  care  and  caution,  that, 
but  for  such  negligence  or  want  of  ordinary  care  and  caution  on  her 
part,  the  misfortune  would  not  have  happened;  that  in  the  first  case 
the  plaintiffs  would  be  entitled  to  recover,  and  in  the  second  they 
would  not." 

They  further  asked  the  judge  to  rule  "that  mere  negligence  or 
want  of  ordinary  care  and  caution,  will  not  disentitle  the  plaintiffs 
to  recover,  unless  it  be  such  that,  but  for  that  negligence,  or  want  of 
ordinary  care  and  caution,  the  misfortune  could  not  have  happened, 
nor  if  the  defendants  might,  by  the  exercise  of  care  on  their  part, 
have  avoided  the  consequences  of  the  neglect  or  carelessness  of  the 
female  plaintiff." 

"  The  judge  did  not  instruct  the  jury  in  the  terms  requested  by 
either  party ;  but,  among  other  things,  instructed  them  that,  to  main- 
tain the  action,  tlie  plaintiffs  must  prove,  in  the  first  place,  that  the 
female  plaintiff,  at  the  time  of  the  accident,  was  in  the  exercise  of 
ordinary  care;  and  in  the  second  place,  that  the  defendants  were  not 
in  the  cxnrcific!  of  ordinary  care;  that  if  the  jury  found  that  at  the 
time  of  tb(!  accident  the  female  plaintiff  was  guilty  of  negligence, 
or  want  of  ordinary  care,  and  tliis  contributed  to  the  accident,  she 
would  not  be  entitled  to  recover,  although  the  jury  might  also  find 


CHAP.   XX.]  COMMON  ASPECTS.  681 

that  the  defendants  were  guilty  of  negligence,  or  want  of  ordinary 
care;  that  the  law  would  not  calculate  or  measure  the  comparative 
negligence,  or  want  of  ordinary  care  of  the  two  parties,  if  both  were 
in  fault,  but  if  the  female  plaintiff's  own  negligence,  or  want  of 
ordinary  care,  contributed  to  the  accident,  the  plaintiffs  could  not 
recover." 

The  jury  found  a  verdict  for  the  defendants  and  the  plaintiff 
excepted  to  the  ruling  of  the  court,  and  to  the  refusal  to  rule  as 
requested. 

Wells,  J.  The  instructions  given  to  the  jury,  in  regard  to  the 
conditions  upon  which  liability  of  the  defendants  must  depend,  were 
correct,  and  sufficient  for  the  case  that  was  presented  by  the  facts, 
and  were  carefully  expressed  and  guarded.  We  do  not  understand 
that  any  objection  is  made  to  what  they  contain.  The  plaintiffs  con- 
tend that  they  are  not  equivalent  to  the  instructions  prayed  for ;  and 
that  they  are  entitled  to  a  new  trial  on  account  of  that  deficiency. 

We  are  of  opinion  that  whatever  is  contained  in  the  instructions 
prayed  for,  beyond  what  is  in  those  given,  or  inconsistent  therewith, 
is  not  in  accordance  with  the  well  established  principles  of  law.  The 
difference  appears  to  be  this.  It  is  contended  that  contributory  negli- 
gence on  the  part  of  the  female  plaintiff  ought  not  to  defeat  the 
action,  unless  it  should  appear  that,  in  the  particular  case,  it  did  in 
fact  contribute  to  such  an  extent  that  the  injury  could  not  or  would 
not  have  occurred  but  for  her  negligence.  The  counter-proposition, 
which  we  think  to  be  more  nearly  a  true  statement  of  the  legal  prin- 
ciple, is,  that  there  can  be  no  recovery  unless  it  shall  appear  that  the 
injury  happened,  or  would  have  happened,  irrespectively  of  any  negli- 
gence on  the  part  of  the  female  plaintiff.  This  is  necessarily  involved 
in  the  general  rule,  which  applies  to  all  cases  of  this  nature,  to  wit, 
that  the  plaintiff  must  show  not  only  negligence  on  the  part  of  the 
defendant,  but  due  care  on  his  own  part.  That  the  burden  of  proof 
rests  upon  these  plaintiffs  to  maintain  both  of  these  points  is  clearly 
established  by  the  authorities  cited  by  the  defendants;  and  rests,  as 
we  think,  upon  sound  principle.  The  plaintiffs  do  not  sustain  that 
burden,  if  the  proof  leaves  it  in  doubt  whether  or  not  the  injury 
resulted  in  whole  or  in  part  from  the  fault  of  the  female  plaintiff. 

The  last  part  of  the  instructions  prayed  for  suggests  another  ques- 
tion, which,  in  certain  conditions  of  facts,  may  require  careful  con- 
sideration ;  to  wit,  how  far  the  obligations  and  liabilities  of  one  party 
are  modified  towards  the  other,  after  knowledge  of  a  negligent  expo- 
sure, by  the  latter,  to  danger  from  the  acts  or  neglect  of  the  former. 
In  such  case,  what  would  otherwise  have  been  mere  negligence  may 
become  wilful  or  wanton  wrong;  or  may  take  the  place  of  the  sole 
direct  or  proximate  cause;  the  negligence  of  the  other  party  being 
then  regarded  as  a  remote,  and  not  a  contributory  cause.  But  no  such 
question  arises  upon  the  facts  of  the  present  case. 


682  MURPHY   V.   DEANE.  [CIIAP.    XX. 

The  instructions  of  the  court  were  all  that  were  required  by  the 
facts,  and  the  verdict  is  well  warranted  by  the  testimony.  We  should 
not  consider  further  discussion  necessary  or  appropriate,  but  that  we 
observe  that  the  prayer  for  instructions  is  framed  in  the  precise  terms 
of  a  statement  by  Mr.  Justice  Wightman  in  the  case  cited  of  Tuff  v. 
Warman,  5  C.  B.  (N.  S.)  573;  which  statement  also  forms  the  head- 
note  of  the  report  of  that  case. 

The  verdict  in  that  case  was  for  the  plaintiff.  The  judge  at  nisi 
prius  had  instructed  the  jury  that  negligence  of  the  plaintiff,  con- 
tributing directly  to  the  injury,  would  defeat  his  recovery.  The 
only  question  was,  whether  the  use  of  the  term  "  directly  "  was  not 
too  restrictive,  and  likely  to  mislead  the  jury;  and  the  verdict  was 
sustained  on  the  ground  that  other  portions  of  the  charge  made  it  clear 
that  the  jury  must  have  understood  the  term  as  distinguishing  be- 
tween proximate  and  remote  causes.  The  real  question  in  the  case 
was,  not  so  much  the  effect  of  contributory  negligence,  as  whether 
the  alleged  negligence  of  the  plaintiff  was  so  remote  as  not  to  bear  the 
character  of  contributory  negligence.  Throughout  the  discussion  the 
general  doctrine  is  recognized  that  negligence  of  the  plaintiff,  co- 
operating to  produce  the  result,  will  defeat  the  action;  that  the 
negligence  of  the  defendant  must  be  the  sole  cause  of  the  injury.  It 
is  so  explained  by  Mr.  Justice  Willes  in  the  case  of  London,  Brighton 
&  South  Coast  Eailway  Co.  v.  Walton,  14  Law  Times,  (N.  S.)  253; 
S.  C.  Harr.  &  Ruth.  424;  and  so  understood  in  Scott  v.  Dublin  & 
Wicklow  Eailway  Co.  11  Irish  C.  L.  377. 

It  is  apparent  that  the  statement  taken  from  Tuff  v.  Warman  en- 
tirely overlooks  the  practical  application  of  the  rule  as  a  guide  in  the 
trial  of  a  cause.  It  was  probably  made  without  reference  to  the  burden 
of  proof.  It  not  only  fails  to  take  into  account  the  well  settled  prin- 
ciple that  the  burden  is  upon  the  plaintiff  to  show  due  care  on  his 
own  part,  but,  by  its  form,  implies  that  contrary.  We  think,  however, 
that  the  statement  will  be  found  to  be  faulty  in  substance,  as  well  as 
in  form.  One  of  the  propositions  in  this  statement  is,  that  "  mere 
negligence,  or  want  of  ordinary  care  or  caution,  will  not  disentitle 
the  plaintiff  to  recover,  unless  it  be  such  that,  but  for  that  negligence 
or  want  of  ordinary  care  and  caution,  the  misfortune  could  not  have 
happened."  There  is  certainly  nothing  indicated  in  this  proposition 
for  the  plaintiff  to  establish  affirmatively.  More  than  this;  if  it 
should  appear  that  the  negligence  of  the  defendant  was  an  adequate 
cause  to  produce  the  result,  the  plaintiff  must  recover,  even  though  he 
was  himself  equally,  or  even  to  a  greater  degree  than  the  defendant, 
in  fault.  If  the  case  can  be  supposed  in  which  both  parties  were 
equally  in  fault,  the  fault  of  each  being  equally  proximate,  direct, 
and  adequate  to  produce  the  result,  so  that  it  might  have  occurred 
from  the  conduct  of  eilhor  without  the  fault  of  the  other,  there  would 
then   be  a  case  of  contributory  negligence,  for  the  consequence  of 


CHAP.   XS.J  COMMON   ASPECTS.  683 

which  neither  could  recover  from  the  other.  But  upon  the  state- 
ment quoted  from  Tulf  v.  Warman,  neither  would  be  "  disentitled," 
and  therefore  both  could  recover  if  both  suffered  injury,  each  from 
the  other. 

Every  case  in  which  the  proof  fails  to  show,  or  leaves  it  in  doubt, 
which  of  two  sufficient  causes  was  the  actual  proximate  cause  of  the 
injury,  is  practically  such  a  case.  It  is  manifest  from  this  illustration, 
that,  as  a  definition  of  the  limits  of  the  right  to  recover  in  such  cases, 
the  proposition  referred  to  must  be  logically  incorrect.  Eliminating 
negatives  from  the  first  branch  of  the  proposition,  it  is,  that  a  plaintiff 
may  recover  in  such  cases,  unless  the  misfortune  could  not  have  hap- 
pened but  for  his  own  negligence.  This,  as  we  have  seen,  being 
stated  affirmatively,  is  too  broad,  and  not  correct;  although  its  sup- 
plement or  negative  counterpart  is  correct,  as  far  as  it  extends,  to  wit. 
that  he  cannot  recover  if  the  misfortune  could  not  have  happened  but 
for  his  own  negligence. 

In  Greenland  v.  Chaplin,  5  Exch.  248,  Chief  Baron  Pollock  states 
the  rule  "  that,  when  the  negligence  of  the  party  injured  did  not  in 
any  degree  contribute  to  the  immediate  cause  of  the  accident,  such 
negligence  ought  not  to  be  set  up  as  an  answer  to  the  action."  Except 
that,  in  form  of  statement,  it  leaves  out  of  view  the  consideration 
of  the  burden  of  proof,  this  seems  to  us  to  be  accurate,  and  in  accord- 
ance with  the  current  of  authorities.  See  Dowell  v.  General  Steam 
Navigation  Co.  5  El.  &  Bl.  195 ;  Bridge  v.  Grand  Junction  Railway 
Co.  3  M.  &  W.  244;  Johnson  v.  Hudson  River  Railroad  Co.  20  N".  Y. 
65 ;  Trow  v.  Vermont  Central  Railroad  Co.  24  Verm.  487 ;  Beers  v. 
Housatonic  Railroad  Co.  19  Conn.  536. 

The  statement  in  Tuff  v.  Warman  proceeds  thus :  "  Nor  if  the  de- 
fendants might,  by  the  exercise  of  due  care  on  their  part,  have  avoided 
the  consequences  of  the  neglect  or  carelessness  of  the  plaintiff."  This, 
as  already  suggested,  may  be  correct  as  applied  to  a  case  like  Tuff  v. 
Warman,  where  the  negligence  of  the  plaintiff  was  in  a  certain  sense 
remote,  preceding  the  negligent  conduct  of  the  defendant.  But  where 
the  negligent  conduct  of  the  two  parties  is  contemporaneous,  and  the 
fault  of  each  relates  directly  and  proximately  to  the  occurrence  from 
which  the  injury  arises,  the  rule  of  law  is  rather  that  the  plaintiff 
cannot  recover  if  by  due  care  on  his  part  he  might  have  avoided  the 
consequences  of  the  carelessness  of  the  defendant.  Lucas  v.  New 
Bedford  &  Taunton  Railroad  Co.  6  Gray,  64.  Waite  v.  Northeastern 
Railway  Co.  9  El.  &  Bl.  719.  Robinson  v.  Cone,  22  Verm.  213.  Sup- 
pose the  case  of  a  collision  upon  a  public  highway ;  both  parties  care- 
less and  equally  in  fault,  but  either,  by  the  exercise  of  proper  care  on 
his  part,  might  have  avoided  the  consequences  of  the  carelessness  of 
the  other.  By  the  proposition  last  quoted  from  Tuff  v.  Warman,  each 
would  be  liable  to  the  other,  and  each  would  be  entitled  to  recover 
from  the  other,  for  whatever  injuries  he  might  have  thus  received. 


684  RATCLIFFE  V.    EVANS.  [CHAP.  XX. 

We  think  it  is  manifest  that  the  rule  thus  laid  down  in  Tuff  v. 
Warman  is  not  the  correct  rule  of  law  which  governs  ordinary  cases  of 
injury  by  negligence;  but  whenever  there  is  negligence  on  the  part 
of  the  plaintiff,  contributing  directly,  or  as  a  proximate  cause,  to  the 
occurrence  from  which  the  injury  arises,  such  negligence  will  prevent 
the  plaintiff  from  recovery ;  and  the  burden  is  always  upon  the  plain- 
tiff to  establish  either  that  he  himself  was  in  the  exercise  of  due  care, 
or  that  the  injury  is  in  no  degree  attributable  to  any  want  of  proper 
care  on  his  part.  Trow  v.  Vermont  Central  Railroad  Co.  24  Verm. 
487.    Birge  v.  Gardiner  19  Conn.  507. 

Exceptions  overruled. 


6.  Special  Damage. 

RATCLIFFE  v.  EVANS. 

Court  of  Appeal  of  England,  May,  1892.     2  Q.  B.  524. 

Motion  to  enter  judgment  for  the  defendant,  or  for  a  new  trial,  by 
way  of  appeal  from  the  judgment  entered  by  Mr.  Commissioner 
Bompas,  Q.  C,  in  an  action  tried  with  a  jury  at  the  Chester  Summer 
Assizes,  1891. 

The  statement  of  claim  in  the  action  alleged  that  the  plaintiff  had 
for  many  years  carried  on  the  business,  at  Hawarden  in  the  county  of 
Flint,  of  an  engineer  and  boiler-maker  under  the  name  of  "  Ratcliffe 
&  Sons,"  having  become  entitled  to  the  good-will  of  the  business  upon 
the  death  of  his  father,  who,  with  others,  had  formerly  carried  on  the 
business  as  "  Ratcliffe  &  Sons ; "  that  the  defendant  was  the  registered 
proprietor,  publisher,  and  printer  of  a  weekly  newspaper  called  the 
*'  County  Herald,"  circulated  in  Flintshire  and  some  of  the  adjoining 
counties,  and  that  the  plaintiff  had  suffered  damage  by  the  defendant 
falsely  and  maliciously  publishing  and  printing  of  the  plaintiff  in 
relation  to  his  business,  in  the  "  County  Herald,"  certain  words  set 
forth  which  imported  that  the  plaintiff  had  ceased  to  carry  on  his 
business  of  engineer  and  boiler-maker,  and  that  the  firm  of  Ratcliffe 
&  Sons  did  not  then  exist. 

At  the  trial  the  learned  commissioner  allowed  the  statement  of 
claim  to  be  amended  by  adding  that  "by  reason  of  the  premises  the 
plaintiff  was  injured  in  his  credit  and  reputation,  and  in  his  said 
business  of  an  engineer  and  boiler-maker,  and  he  thereby  lost  profits 
which  he  otherwise  would  have  made  in  his  said  business."  The 
plaintiff  proved  the  publication  of  tbe  statements  complained  of,  and 
that  they  were  untrue.  He  also  proved  a  general  loss  of  business 
since  the  publication;  but  he  gave  no  specific  evidence  of  the  loss  of 
any  particular  customers  or  orders  by  reason  of  such  publication.  In 
answer  to  fpiostions  left  to  them  by  the  commissioner,  tlie  jury  found 
that  the  words  did  not  reflect  upon  the  plaintill's  character,  and  were 


CHAP.    XX.]  COMMON    ASPECTS.  685 

not  libellous;  that  the  statement  that  the  firm  of  liatclilTe  &  Sons 
was  extinct  was  not  published  bona  fide;  and  that  the  plaintiff's 
business  suffered  injury  to  tlie  extent  of  £120  from  the  publication 
of  that  statement.  The  commissioner,  upon  those  findings,  gave  judg- 
ment for  the  plaintiff,  for  £120,  with  costs. 

The  defendant  appealed. 

BowEN,  L.  J.  This  was  a  case  in  which  an  action  for  a  false  and 
malicious  publication  about  the  trade  and  manufactures  of  the  plain- 
tiff was  tried  at  the  Chester  assizes,  with  the  result  of  a  verdict  for 
the  plaintiff  for  £120.  Judgment  having  been  entered  for  the  plaintiff 
for  the  sum  and  costs,  the  defendant  appealed  to  this  court  for  a  new 
trial,  or  to  enter  a  verdict  for  the  defendant,  on  the  ground,  amongst 
others,  that  no  special  damage,  such  as  was  necessary  to  support  the 
action,  was  proved  at  the  trial.  The  injurious  statement  complained 
of  was  a  publication  in  the  "  County  Herald,"  a  Welsh  newspaper. 
It  was  treated  in  the  pleadings  as  a  defamatory  statement  or  libel; 
but  this  suggestion  was  negatived,  and  the  verdict  of  the  jury  pro- 
ceeded upon  the  view  that  the  writing  was  a  false  statement  purposely 
made  about  the  manufactures  of  the  plaintiff,  which  was  intended 
to,  and  did  in  fact,  cause  him  damage.  The  only  proof  at  the  trial 
of  such  damage  consisted,  however,  of  evidence  of  general  loss  of 
business  without  specific  proof  of  the  loss  of  any  particular  customers 
or  orders,  and  the  question  we  have  to  determine  is,  whether  in  such 
an  action  such  general  evidence  of  damage  was  admissible  and  suf- 
ficient. That  an  action  will  lie  for  written  or  oral  falsehoods,  not 
actionable  per  se  nor  even  defamatory,  where  they  are  calculated  in 
the  ordinary  course  of  things  to  produce,  and  where  they  do  produce, 
actual  damage,  is  established  law.  Such  an  action  is  not  one  of  libel 
or  of  slander,  but  an  action  on  the  case  for  damage  wilfully  and  in- 
tentionally done  without  just  occasion  or  excuse,  analogous  to  an 
action  for  slander  of  title.  To  support  it  actual  damage  must  be 
shown,  for  it  is  an  action  which  only  lies  in  respect  of  such  damage 
as  has  actually  occurred.  It  was  contended  before  us  that  in  such  an 
action  it  is  not  enough  to  allege  and  prove  general  loss  of  business 
arising  from  the  publication,  since  such  general  loss  is  general  and 
not  special  damage,  and  special  damage,  as  often  has  been  said,  is 
the  gist  of  such  an  action  on  the  case.  Lest  we  should  he  led  astray  in 
such  a  matter  by  mere  words,  it  is  desirable  to  recollect  that  the  term 
"  special  damage,"  which  is  found  for  centuries  in  the  books,  is  not 
always  used  with  reference  to  similar  subject-matter,  nor  in  the  same 
context.  At  times  (both  in  the  law  of  tort  and  of  contract)  it  is 
employed  to  denote  that  damage  arising  out  of  special  circumstances 
of  the  case  which,  if  properly  pleaded,  may  be  superadded  to  the 
general  damage  which  the  law  implies  in  every  breach  of  contract  and 
every  infringement  of  an  absolute  right:    see  Ashby  v.  White.^ 

1  2  Ld.  Raym.  938  ;  1  Sm.  L.  C.  9th  ed.  p.  268,  per  Holt,  C.  J. 


686  RATCLIFFE  V.    EVANS.  [CHAP.  XX. 

In  all  sucli  cases  the  law  presumes  that  some  damage  will  flow  in 
the  ordinary  course  of  things  from  the  mere  invasion  of  the  plaintiff's 
rights,  and  calls  it  general  damage.  Special  damage  in  such  a  context 
means  the  particular  damage  (beyond  the  general  damage),  which 
results  from  the  particular  circumstances  of  the  case,  and  of  the  plain- 
tiff's claim  to  be  compensated,  for  which  he  ought  to  give  warning  in 
his  pleadings  in  order  that  there  may  be  no  surprise  at  the  trial.  But 
where  no  actual  and  positive  right  (apart  from  the  damage  done)  has 
been  disturbed,  it  is  the  damage  done  that  is  the  wrong;  and  the 
expression  "  special  damage,"  when  used  of  this  damage,  denoted  the 
actual  and  temporal  loss  which  has,  in  fact,  occurred.  Such  damage 
is  called  variously  in  old  authorities,  "  express  loss,"  "  particular 
damage :  "  Cane  v.  Golding ;  ^  "  damage  in  fact,"  "  special  or  particu- 
lar cause  of  loss :  "  Law  v.  Harwood ;  ^  Tasburg  v.  Day.^ 

The  term  "  special  damage  "  has  also  been  used  in  actions  on  the 
case  brought  for  a  public  nuisance,  such  as  the  obstruction  of  a  river 
or  a  highway,  to  denote  that  actual  and  particular  loss  which  the 
plaintiff  must  allege  and  prove  that  he  has  sustained  beyond  what  is 
sustained  by  the  general  public,  if  his  action  is  to  be  supported,  such 
particular  loss  being,  as  is  obvious,  the  cause  of  action ;  see  Iveson  v. 
Moore ;  *  Eose  v.  Groves.^  In  this  judgment  we  shall  endeavor  to 
avoid  a  term  which,  intelligible  enough  in  particular  contexts,  tends, 
when  successively  employed  in  more  than  one  context  and  with  regard 
to  different  subject-matter,  to  encourage  confusion  in  thought.  The 
question  to  be  decided  does  not  depend  on  words,  but  is  one  of  sub- 
stance. In  an  action  like  the  present,  brought  for  a  malicious  false- 
hood intentionally  published  in  a  newspaper  about  the  plaintiff's  busi- 
ness —  a  falsehood  which  is  not  actionable  as  a  personal  libel,  and 
which  is  not  defamatory  in  itself  —  is  evidence  to  show  that  a  general 
loss  of  business  has  been  the  direct  and  natural  result  admissible  in 
evidence,  and  if  uncontradicted,  sufficient  to  maintain  the  action? 
In  the  case  of  a  personal  libel,  such  general  loss  of  custom  may  unques- 
tionably be  alleged  and  proved.  Every  libel  is  of  itself  a  wrong  in 
regard  of  which  the  law,  as  we  have  seen,  implies  general  damage. 
By  the  very  fact  that  he  has  committed  such  a  wrong,  the  defendant 
is  prepared  for  the  proof  that  some  general  damage  may  have  been 
done.  As  is  said  by  Gould,  J.,  in  Iveson  v.  Moore,"  in  actions  against 
a  wrong-doer  a  more  general  mode  of  declaring  is  allowed.  If,  indeed, 
over  and  above  this  general  damage,  further  particular  damage  is 
under  the  circumstances  to  be  relied  on  by  the  plaintiff,  such  par- 
ticular damage  must  of  course  be  alleged  and  shown.  But  a  loss  of 
general  custom,  flowing  directly  and  in  the  ordinary  course  of  things 

»Htv.  ir,f). 

»  H  Cro.  r'nr.  140. 

*  fro.  .Ifif".  4.S4. 

♦  1    1,(1.    Kiivm.  4«0. 

»r.  M.  &  ';   oi.'i. 

•l   L(l.   Itayni.  480. 


CHAP.   5X.]  COMMON   ASPECTS.  687 

from  a  libel,  may  be  alleged  and  proved  generally.  "  It  is  not  special 
damage  "  —  says  Pollock,  C.  B.,  in  Harrison  v.  Pearce,^  —  "  it  is 
general  damage  resulting  from  the  kind  of  injury  the  plaintiff  has 
sustained."  So  in  Bluck  v.  Levering,-  under  a  general  allegation  of 
loss  of  credit  in  business,  general  evidence  wa&  received  of  a  decline  of 
business  presumably  due  to  the  publication  of  the  libel,  while  loss  of 
particular  customers,  not  having  been  pleaded,  was  held  rightly  to 
have  been  rejected  at  the  trial:  see  also  Ingram  v.  Lawson.^  Akin 
to,  though  distinguishable  in  a  respect  which  will  be  mentioned  from, 
actions  of  libel  are  those  actions  which  are  brought  for  oral  slander, 
where  such  slander  consists  of  words  actionable  in  themselves  and  the 
mere  use  of  which  constitutes  the  infringement  of  the  plaintiff's  right. 
The  very  speaking  of  such  words,  apart  from  all  damage,  constitutes 
a  wrong  and  gives  rise  to  a  cause  of  action.  The  law  in  such  a  case, 
as  in  the  case  of  libel,  presumes,  and  in  theory  allows,  proof  of  gen- 
eral damage.  But  slander,  even  if  actionable  in  itself,  is  regarded  as 
differing  from  libel  in  a  point  which  renders  proof  of  general  damage 
in  slander  cases  difficult  to  be  made  good.  A  person  who  publishes 
defamatory  matter  on  paper  or  in  print  puts  in  circulation  that  which 
is  more  permanent  and  more  easily  transmissible  than  oral  slander. 
Verbal  defamatory  statements  may,  indeed,  be  intended  to  be  repeated, 
or  may  be  uttered  under  such  circumstances  that  their  repetition  fol- 
lows in  the  ordinary  course  of  things  from  their  original  utterance. 
Except  in  such  cases,  the  law  does  not  allow  the  plaintiff  to  recover 
damages  which  flow,  not  from  the  original  slander,  but  from  its 
unauthorized  repetition :  Ward  v.  Weeks ;  *  Holwood  v.  Hopkins ;  ^ 
Dixon  V.  Smith.''  General  loss  of  custom  cannot  properly  be  proved 
in  respect  of  a  slander  of  this  kind  when  it  has  been  uttered  under 
such  circumstances  that  its  repetition  does  not  flow  directly  and 
naturally  from  the  circumstances  under  which  the  slander  itself  was 
uttered.  The  doctrine  that  in  slanders  actionable  per  se  general 
damage  may  be  alleged  and  proved  with  generality  must  be  taken, 
therefore,  with  the  qualification  that  the  words  complained  of  must 
have  been  spoken  under  circumstances  which  might  in  the  ordinary 
course  of  things  have  directly  produced  the  general  damage  that  has 
in  fact  occurred.  .  .  .  From  libels  and  slanders  actionable  per  se, 
•we  pass  to  the  case  of  slanders  not  actionable  per  se,  where  actual 
damage  done  is  the  very  gist  of  the  action.  Many  old  authorities  may 
be  cited  for  the  proposition  that  in  such  a  case  the  actual  loss  must 
be  proved  specially  and  with  certainty;  Law  v.  Harwood.^  Many 
such  instances  are  collected  in  the  judgments  in  Iveson  v.  Moore,* 

132  L.  T.   (O.  S.)   298. 
»1   Times   L.  R.   497. 
»6  Bing.  N.  C.  212. 
*7   Bing.    211. 
"Cro.    Eliz.   787. 
•5  H.  & 
'  Cro.   Car.  140. 
•  1  Ld.   Raym.  486. 


688  RATCLIFFE  V.    EVANS.  [CHAP.  XX. 

where,  although  there  was  a  difference  as  to  whether  the  general  rule 
had  been  fulfilled  in  that  particular  kind  of  action  on  the  case,  no 
doubt  was  thrown  on  the  principle  itself.  .  .  .  Cases  may  here,  as 
before,  occur  where  a  general  loss  of  custom  is  the  natural  and  direct 
result  of  the  slander,  and  where  it  is  not  possible  to  specify  particular 
instances  of  the  loss. 

Hartley  v.  Herring  ^  is  probably  a  case  of  the  kind,  although  it 
does  not  appear  from  the  report  under  what  circumstances,  or  in  the 
presence  of  whom,  the  slanderous  words  were  uttered.  .  .  .  Slanders 
of  title,  written  or  oral,  and  actions  such  as  the  present,  brought  for 
damage  done  by  falsehoods,  written  or  oral,  about  a  man's  goods  or 
business,  are  similar  in  many  respects  to  the  last-mentioned  class  of 
slanders  not  actionable  in  themselves.  Damage  is  the  gist  of  both 
actions  alike,  and  it  makes  no  difference  in  this  respect  whether  the 
falsehood  is  oral  or  in  writing;  Malachy  v.  Soper.^  The  necessity  of 
alleging  and  proving  actual  temporal  loss  with  certainty  and  precision 
in  all  cases  of  the  sort  has  been  insisted  upon  for  centuries.  ...  In 
all  actions  accordingly  on  the  case  where  the  damage  actually  done  is 
the  gist  of  the  action,  the  character  of  the  acts  themselves  which  pro- 
duce the  damage,  and  the  circumstances  under  which  these  acts  are 
done,  must  regulate  the  degree  of  certainty  and  particularity  with 
which  the  damages  done  ought  to  be  stated  and  proved.  As  much 
certainty  and  particularity  must  be  insisted  on,  both  in  pleading  and 
proof  of  damage,  as  is  reasonable  having  regard  to  the  circumstances 
and  to  the  nature  of  the  acts  themselves  by  which  the  damage  is  done. 
To  insist  upon  less  would  be  to  relax  old  and  intelligible  principles. 
To  insist  upon  more  would  be  the  vainest  pedantry.  The  rule  to  be 
laid  down  with  regard  to  malicious  falsehoods  affecting  property  or 
trade  is  only  an  instance  of  the  doctrines  of  good  sense  applicable 
to  all  that  branch  of  actions  on  the  case  to  which  the  class  under  dis- 
cussion belongs.  The  nature  and  circiimstances  of  the  publication 
of  the  falsehood  may  accordingly  require  the  admission  of  evidence 
of  general  loss  of  business  as  the  natural  and  direct  result  produced, 
and  perhaps  intended  to  be  produced.  ...  In  the  case  before  us  to- 
day, it  is  a  falscliood  openly  disseminated  through  the  press  —  prob- 
ably read,  and  possibly  acted  on,  by  persons  of  whom  the  plaintiff 
never  heard.  To  refuse  with  reference  to  such  a  subject-matter  to 
admit  such  general  evidence  would  be  to  misunderstand  and  warp  the 
meaning  of  old  expressions;  to  depart  from,  and  not  to  follow,  old 
rules;  and,  in  addition  to  all  this,  would  involve  an  absolute  denial 
of  justice  and  of  redress  for  the  very  mischief  which  was  intended 
to  be  committed.  ...  In  our  opinion,  therefore,  there  has  been  no 
misdirection  and  no  improper  admission  of  evidence,  and  this  appeal 
sliould  be  dismissed  with  costs. 

Appeal  dismissed. 
»  8  T.  u.  1  .?o. 
*Ante,  p.  221. 


CHAP.   XX.]  COMMON   ASPECTS.  689 

SPADE  V.  LYNN  AND  BOSTON  EAILKOAD  COMPANY. 

Supreme  Court  of  Massachusetts,  January,  1897.     168  Mass.  285. 

Tort,  for  personal  injuries  occasioned  to  the  plaintiff  by  the  alleged 
negligence  of  the  defendant.  The  declaration  alleged  that  while, 
on  February  16,  1895,  the  plaintiff  was  a  passenger  in  the  defendant's 
car,  and  in  the  exercise  of  due  care,  "  one  of  the  defendant's  agents 
or  servants,  in  attempting  to  remove  from  said  car  a  certain  person 
claimed  and  alleged  by  said  defendant's  agent  to  be  noisy,  turbulent, 
and  unfit  to  remain  as  a  passenger  in  said  car,  conducted  himself  with 
such  carelessness,  negligence,  and  with  the  use  of  such  unnecessary 
force,  that  said  agent  and  servant,  acting  thus  negligently,  created  a 
disorder,  disturbance,  and  quarrel  in  said  car,  and  thereby  frightened 
the  plaintiff  and  subjected  her  to  a  severe  nervous  shock,  by  which 
nervous  shock  the  plaintiff  was  physically  prostrated  and  suffered, 
and  has  continued  to  suffer,  great  mental  and  physical  pain  and  an- 
guish, and  has  been  put  to  great  expense." 

At  the  trial  in  the  Superior  Court,  before  Mason,  C.  J.,  there  was 
evidence  tending  to  show  that  the  accident  complained  of  occurred 
while  the  plaintiff  was  being  conveyed  to  her  home  in  Chelsea  upon 
a  crowded  car  of  the  defendant  company,  after  10.30  p.  m.,  on  Febru- 
ary 16,  1895. 

The  plaintiff  testified  in  substance  that  two  men  somewhat  intoxi- 
cated were  allowed,  during  a  part  of  the  trip  from  Boston  to  Chelsea, 
to  stand  near  her  in  the  car,  one  of  them  in  a  position  where  he  was 
leaning  or  lurching  toward  her  in  such  a  way  that  she  was  obliged  to 
move  to  avoid  him;  that  a  controversy  occurred  between  one  of  the 
intoxicated  persons  and  the  conductor  about  the  payment  of  a  fare, 
and  that  the  conductor  said  to  the  intoxicated  person,  after  some 
other  conversation,  that  if  he  did  not  keep  quiet  he  would  throw  him 
off  the  car,  even  if  he  broke  his  head;  that  as  she  neared  the  place 
where  she  was  to  leave  the  car  .  .  .  the  conductor  tried  to  eject  one 
of  the  intoxicated  men ;  that  in  doing  so,  some  one  lurched  over  her ; 
that  she  became  unconscious,  but  that  she  did  not  suffer  any  pain 
from  the  contact  with  the  one  who  lurched  upon  her. 

Tlie  jury  returned  a  verdict  for  the  plaintiff;  and  the  defendant 
alleged  exceptions,  the  nature  of  which  appears  in  the  opinion. 

The  case  was  argued  at  the  bar  in  January,  1897,  and  afterwards 
was  submitted  on  briefs  to  all  the  justices. 

Allen,  J.  This  case  presents  a  question  which  has  not  heretofore 
been  determined  in  this  Commonwealth,  and  in  respect  to  which  the 
decisions  elsewhere  have  not  been  uniform.  It  is  this :  whether  in 
an  action  to  recover  damages  for  an  injury  sustained  through  the 
negligence  of  another,  there  can  be  a  recovery  for  a  bodily  injury 


690  SPADE   V.   LYNN  AND  BOSTON  R.   CO.  [OHAP,    XX. 

caused  by  mere  fright  and  mental  disturbance.  The  jury  were  in- 
structed that  a  person  cannot  recover  for  mere  fright,  fear,  or  mental 
distress  occasioned  by  the  negligence  of  another,  which  does  not  result 
in  bodily  injury;  but  that  when  the  fright  or  fear  or  nervous  shock 
produces  a  bodily  injury,  there  may  be  a  recovery  for  that  bodily  in- 
jury, and  for  all  the  pain,  mental  or  otherwise,  which  may  arise  out 
of  that  bodily  injury. 

In  Canning  v.  Williamstown,  1  Cush.  451,  it  was  held,  in  an  action 
against  a  town  to  recover  damages  for  an  injury  sustained  by  the 
plaintiff  in  consequence  of  a  defective  bridge,  that  he  could  not  re- 
cover if  he  sustained  no  injury  to  his  person,  but  merely  incurred 
risk  and  peril  which  caused  fright  and  mental  suffering.  In  Warren 
V.  Boston  &  Maine  Eailroad,  163  Mass.  484,  the  evidence  tended  to 
show  that  the  defendant's  train  struck  the  carriage  of  the  plaintiff, 
thereby  throwing  him  out  upon  the  ground,  and  it  was  held  to  be  a 
physical  injury  to  the  person  to  be  thrown  out  of  a  wagon,  or  to  be 
compelled  to  jump  out,  even  although  the  harm  consists  mainly  of 
nervous  shock.  It  was  not  therefore  a  case  of  mere  fright,  and  result- 
ing nervous  shock. 

The  case  calls  for  a  consideration  of  the  real  ground  upon  which 
the  liability  or  non-liability  of  a  defendant  guilty  of  negligence  in  a 
case  like  the  present  depends.  The  exemption  from  liability  for 
mere  fright,  terror,  alarm,  or  anxiety  does  not  rest  on  the  assumption 
that  these  do  not  constitute  an  actual  injury.  They  do  in  fact  deprive 
one  of  enjoyment  and  of  comfort,  cause  real  suffering,  and  to  a 
greater  or  less  extent  disqualify  one  for  the  time  being  from  doing 
the  duties  of  life.  If  these  results  flow  from  a  wrongful  or  negligent 
act,  a  recovery  therefor  cannot  be  denied  on  the  ground  that  the  in- 
jury is  fanciful  and  not  real.  Nor  can  it  be  maintained  that  these 
results  may  not  be  the  direct  and  immediate  consequence  of  the  negli- 
gence. Danger  excites  alarm.  Few  people  are  wholly  insensible  to  the 
emotions  caused  by  imminent  danger,  though  some  are  less  affected 
than  others. 

It  must  also  be  admitted  that  a  timid  or  sensitive  person  may 
suffer  not  only  in  mind,  but  also  in  body,  from  such  a  cause.  Great 
emotion  may  and  sometimes  does  produce  physical  effects.  The  action 
of  the  heart,  the  circulation  of  the  blood,  the  temperature  of  the  body, 
as  well  as  the  nerves  and  the  appetite,  may  all  be  affected.  A  physical 
injury  may  be  directly  traceable  to  fright,  and  so  may  be  caused  by 
it.  We  cannot  say,  therefore,  that  such  consequences  may  not  flow 
proximately  from  unintentional  negligence,  and  if  compensation  in 
damages  may  be  recovered  for  a  physical  injury  so  caused,  it  is  hard 
on  principle  to  say  why  there  should  not  also  be  a  recovery  for  the 
more  mental  suffering  when  not  accompanied  by  any  perceptible  physi- 
cal effects. 

It  would  seem  therefore  that  the  real  reason  for  refusing  damages 


CHAP.   XX.]  COMMON   ASPECTS.  691 

sustained  from  mere  friglit  must  be  something  different;  and  it 
probably  rests  on  the  ground  that  in  practice  it  is  impossible  satisfac- 
torily to  administer  any  other  rule.  The  law  must  be  administered 
in  the  courts  according  to  general  rules.  Courts  will  aim  to  make 
these  rules  as  just  as  possible,  bearing  in  mind  tliat  they  are  to  be  of 
general  application.  But  as  the  law  is  a  practical  science,  having  to 
do  with  the  affairs  of  life,  any  rule  is  unwise  if  in  its  general  applica- 
tion it  will  not  as  a  usual  result  serve  the  purposes  of  justice.  A  new 
rule  cannot  be  made  for  each  case,  and  there  must  therefore  be  a 
certain  generality  in  rules  of  law,  which  in  particular  cases  may  fail 
to  meet  what  would  be  desirable  if  the  single  case  were  alone  to  be 
considered. 

Eules  of  law  respecting  the  recovery  of  damages  are  framed  with 
reference  to  the  just  rights  of  both  parties ;  not  merely  what  it  might 
be  right  for  an  injured  person  to  receive,  to  afford  just  compensation 
for  his  injury,  but  also  what  it  is  just  to  compel  the  other  party  to 
pay.  One  cannot  always  look  to  others  to  make  compensation  for 
injuries  received.  Many  accidents  occur,  the  consequences  of  which 
the  sufferer  must  bear  alone.  And  in  determining  the  rules  of  law  by 
which  the  right  to  recover  compensation  for  unintended  injury  from 
others  is  to  be  governed,  regard  must  chiefly  be  paid  to  such  condi- 
tions as  are  usually  found  to  exist.  Not  only  the  transportation  of 
passengers  and  the  running  of  trains,  but  the  general  conduct  of 
business  and  of  the  ordinary  affairs  of  life,  must  be  done  on  the  as- 
sumption that  persons  who  are  liable  to  be  affected  thereby  are  not 
peculiarly  sensitive,  and  are  of  ordinary  physical  and  mental  strength. 
If,  for  example,  a  traveller  is  sick  or  infirm,  delicate  in  health, 
specially  nervous  or  emotional,  liable  to  be  upset  by  slight  causes,  and 
therefore  requiring  precautions  which  are  not  usual  or  practicable 
for  travellers  in  general,  notice  should  be  given,  so  that,  if  reasonably 
practicable,  arrangements  may  be  made  accordingly,  and  extra  care 
be  observed.  But,  as  a  general  rule,  a  carrier  of  passengers  is  not 
bound  to  anticipate  or  to  guard  against  an  injurious  result  which 
would  only  happen  to  a  person  of  peculiar  sensitiveness.  This  limita- 
tion of  liability  for  injury  of  another  description  is  intimated  in 
Allsop  V.  Allsop,  5  H.  &  N.  534,  538,  539.  One  may  be  held  bound 
to  anticipate  and  guard  against  the  probable  consequences  to  ordinary 
people,  but  to  carry  the  rule  of  damages  further  imposes  an  undue 
measure  of  responsibility  upon  those  who  are  guilty  only  of  uninten- 
tional negligence.  The  general  rule  limiting  damages  in  such  a  case 
to  the  natural  and  probable  consequences  of  the  acts  done  is  of  wide 
application,  and  has  often  been  expressed  and  applied.  Lombard  v. 
Lennox,  155  Mass.  70.  White  v.  Dresser,  135  Mass.  150.  Fillebrown 
V.  Hoar,  124  Mass.  580.  Derry  v.  Flitner,  118  Mass.  131.  Milwaukee 
&  St.  Paul  Railway  v.  Kellogg,  94  U.  S.  469,  475.  Wyman  v.  Leavitt, 
71  Maine,  227.    Ellis  v,  Cleveland,  55  Vt.  358.    Phillips  v.  Dickerson, 


692  SPADE   V.   LYNN  AND  BOSTON  R,   CO.  [CHAP.    XX. 

85  111.  11.  Hampton  v.  Jones,  58  Iowa,  317.  Eenner  v.  Canfield,  36 
Minn.  90.  Lynch  v.  Knight,  9  H.  L.  Cas.  577,  591,  595,  598.  The 
Notting  Hill,  9  P.  D.  105.  Hobbs  v.  London  &  Southwestern  Rail- 
way, L.  E.  10  Q.  B.  Ill,  122. 

The  law  of  negligence  in  its  special  application  to  cases  of  acci- 
dents has  received  great  development  in  recent  years.  The  number 
of  actions  brought  is  very  great.  This  should  lead  courts  well  to 
consider  the  grounds  on  which  claims  for  compensation  properly  rest, 
and  the  necessary  limitations  of  the  right  to  recover.  We  remain 
satisfied  with  the  rule  that  there  can  be  no  recovery  for  fright,  terror, 
alarm,  anxiety,  or  distress  of  mind,  if  these  are  unaccompanied  by 
some  physical  injury;  and  if  this  rule  is  to  stand,  we  think  it  should 
also  be  held  that  there  can  be  no  recovery  for  such  physical  injuries 
as  may  be  caused  solely  by  such  mental  disturbance,  where  there  is 
no  injury  to  the  person  from  without.  The  logical  vindication  of 
this  rule  is,  that  it  is  unreasonable  to  hold  persons  who  are  merely 
negligent  bound  to  anticipate  and  guard  against  fright  and  the  con- 
sequences of  fright ;  and  that  this  would  open  a  wide  door  for  unjust 
claims,  which  could  not  successfully  be  met.  These  views  are  sup- 
ported by  the  following  decisions.  Victorian  Eailways  Commissioners 
V.  Coultas,  13  App.  Cas.  223.^  Mitchell  v.  Eochester  Eailway,  151 
N".  Y.  107.  Ewing  v.  Pittsburg,  Cincinnati,  Chicago  &  St.  Louis 
Eailway,  147  Penn.  St.  40.  Haile  v.  Texas  &  Pacific  Eailway,  60 
Fed.  Eep.  557. 

In  the  following  cases,  a  different  view  was  taken.  Bell  v.  Great 
Northern  Eailway,  26  L.  E.  (Ir.)  428.  Purcell  v.  St.  Paul  City 
Eailway,  48  Minn.  134.  Fitzpatrick  v.  Great  Western  Eailway,  12 
U.  C.  Q.  B.  645.     See  also  Beven,  JSTegligence,  77  et  seq. 

It  is  hardly  necessary  to  add  that  this  decision  does  not  reach  those 
classes  of  actions  where  an  intention  to  cause  mental  distress  or  to 
hurt  the  feelings  is  shown,  or  is  reasonably  to  be  inferred,  as,  for 
example,  in  cases  of  seduction,  slander,  malicious  prosecution,  or 
arrest,  and  some  others.  Nor  do  we  include  cases  of  acts  done  with 
gross  carelessness  or  recklessness,  showing  utter  indifference  to  such 
consequences,  when  they  must  have  been  in  the  actor's  mind.  Lom- 
bard V.  Lennox  and  Fillebrown  v.  Hoar,  already  cited.  Meagher  v. 
Driscoll,  99  Mass.  281. 

In  the  present  case,  no  such  considerations  entered  into  the  rulings 
or  were  presented  by  the  facts.    The  entry  therefore  must  be 

Exceptions  sustained. 

'  Post,  p-  CQ5. 


CHAP.   XX.]  COMMON   ASPECTS.  693 

WATSOX  V.  DILTS. 
Supreme  Court  of  Iowa,  April,  1902.     116  Iowa,  249. 

The  case  is  stated  in  the  opinion. 

A  demurrer  to  the  declaration  was  sustained  and  the  plaintiff 
appealed. 

Sherwin,  J.  The  petition  alleges  that  tlie  plaintiff  is  a  married 
woman,  and  that  on  the  9th  day  of  February,  she  resided,  with  her 
husband  and  child,  on  a  farm  remote  from  the  travelled  highway; 
that  in  the  night  time  of  said  day,  at  about  the  hour  of  11  o'clock, 
and  after  she,  her  husband,  and  her  child  had  gone  to  bed,  the  de- 
fendant wrongfully,  surreptitiously,  and  stealthily  entered  her  said 
home,  and  went  upstairs  to  the  second  story  thereof,  as  the  plaintiff 
then  believed  to  commit  a  felony ;  that  the  identity  of  the  defendant 
was  not  known  to  her  at  the  time  she  heard  him  enter  the  house  and 
go  upstairs,  and  that  she  called  to  her  husband  to  follow  him,  which 
he  did;  that  in  her  apprehension  for  her  own,  her  child's,  and  her 
husband's  life,  from  what  appeared  to  lier  a  threatened  danger,  she 
followed  her  husband  up  to  the  room  where  the  defendant  was  found 
and  where  she  found  him  and  her  husband  in  what  appeared  to  her 
to  be  an  encounter,  and  an  assault  upon  her  husband;  that  she  be- 
came greatly  terrified  thereat,  and  was  attacked  with  a  violent  nervous 
chill  of  such  severity  that  her  nervous  system  completely  gave  way, 
and  she  became  prostrated,  and  was  confined  to  her  bed  with  threat- 
ened neurosis,  or  paralysis,  and  suffered  great  mental  and  physical 
pain  for  nearly  six  weeks,  during  all  of  which  time  she  was  confined 
to  her  bed,  and  unable  to  attend  to  her  household  duties.  The  de- 
murrer to  the  petition  is  based  on  the  ground  that  the  damages 
claimed  are  too  remote  and  speculative,  and  that  the  plaintiff  seeks 
recovery  for  fright  and  injuries  resulting  therefrom  without  any 
physical  injury  to  her  which  caused  the  fright.  The  petition  alleges 
physical  injuries  resulting  from  the  fright  caused  by  the  defendant, 
and  the  demurrer  thereto  raises  the  question  whether  recovery  may 
be  had  for  physical  injuries  so  caused. 

Many  cases  have  been  before  the  courts  in  which  the  question  of  a 
recovery  for  mental  pain  alone,  and  for  physical  disability  produced 
by  fright,  unaccompanied  by  physical  impact,  have  been  decided ;  and 
the  decisions  on  these  questions  are  in  conflict,  though  it  is  probably 
true  that  the  numerical  weight  of  authority  denies  the  right  of  action. 
But  the  cases  so  holding  are  not  in  harmony  as  to  the  reasons  given 
for  denying  the  right  of  action ;  some  of  them  hold  that  the  injury 
is  not  the  proximate  result  of  the  alleged  negligent  or  wrongful  act, 
while  others  refused  a  recovery  for  the  reason  that  it  is  practically 
impossible  to  satisfactorily  administer  any  other  rule  and  serve  the 


694  WATSON    V.    DILTS.  [CHAP.    XX. 

purposes  of  justice.  The  latter  rule  is  the  one  adopted  in  Massachu- 
setts. Spade  V.  Eailroad  Co.,  168  Mass.  285.^  We  shall  not  take  the 
time  to  review  the  cases  in  detail  which  hold  to  the  doctrine  that  no 
recovery  can  be  had.  A  large  majority  of  them  are  cases  in  which 
the  simple  charge  of  negligence  was  made,  and  in  many  of  them  no 
claim  was  made  for  physical  disability  resulting  from  the  fright.  A 
review  of  some  of  the  cases  will' be  found  in  Braun  v.  Craven,  175 
111.  401,  See,  also,  note  in  Ewing  v.  Eailway  Co.,  147  Pa.  40.  Our 
attention  has  not,  however,  been  called  to  any  case  in  which  the  facts 
averred  are  precisely  parallel  to  the  facts  in  this  case,  and  in  no  case  to 
which  we  have  been  cited,  and  in  no  case  which  our  own  investigation 
has  discovered,  have  we  found  facts  alleged  which  so  strongly  condemn 
the  unlimited  application  of  the  rule  contended  for  by  the  appellee 
as  do  the  facts  pleaded  in  the  case  at  bar.  This  defendant,  in  the 
night  time,  stealthily  and  unbidden  invaded  the  home  of  the  plaintiff 
and  her  husband  and  family.  When  he  entered  the  house  and  went 
to  an  upper  room,  she  did  not  know  who  it  was,  nor  his  purpose  and 
intent  in  thus  breaking  and  entering  their  home.  It  was  an  unlaw- 
ful and  lawless  trespass  on  his  part,  no  matter  whether  he  entered 
with  the  intent  to  steal  the  personal  property  of  the  inmates  of  the 
house  or  whether  he  was  in  quest  of  other  game. 

Nor  does  it  matter,  in  our  judgment,  that  the  trespass  was  com- 
mitted on  property  belonging  to  the  husband.  It  was  her  home  as 
well  as  that  of  her  husband;  her  right  to  its  peaceful  and  quiet  en- 
joyment day  or  night  was  equal  to  that  of  her  husband;  and  any 
unlawful  entry  or  invasion  thereof  which  produced  physical  injury 
to  her  was  a  wrong  for  which  she  ought  to  recover.  Let  us  go  a  little 
further  with  the  case,  and  suppose  that  his  purpose  had  been  to  ran- 
sack the  house,  and  steal  therefrom;  that  he  went  in  masked,  and 
with  a  deadly  weapon  in  his  hand.  His  discovery  there  under  such 
circumstances  might  well  cause  alarm  to  the  boldest  man,  and,  if  it 
produced  nervous  prostration,  and  physical  disability,  the  theory,  no 
matter  what  its  reason,  that  would  say  there  was  no  actionable  wrong, 
would  be  too  fine  spun  and  too  cold  for  our  sanction.  Nor  could  it  be 
said,  under  such  circumstances,  that  the  prostration  resulting  from 
the  fright  so  caused  was  not  the  proximate  or  probable  result  of  the 
defendant's  act.  "  Proximate  cause  is  probable  cause ;  and  the  prox- 
imate consequence  of  a  given  act  or  omission,  as  distinguislicd  from 
a  remote  consequence,  is  one  which  succeeds  naturally  in  the  ordinary 
course  of  things,  and  which,  therefore,  ought  to  have  been  anticipated 
by  the  wrongdoer."  1  Thompson,  Negligence,  156.  It  is  within  the 
common  observation  of  all  that  fright  may,  and  usually  does,  affect 
the  nervous  system,  which  is  a  distinctive  part  of  the  physical  system, 
and  controls  the  health  to  a  very  great  extent  and  that  an  entirely 
sound  body  is  never  found  with  a  diseased  nervous  organization; 
consoqucntly  one  who  voluntarily  causes  a  diseased  condition  of  the 

"Ante,  r>-  f>sn. 


CHAP.   XX.]  COMMON   ASPECTS.  695 

latter  must  anticipate  the  consequences  which  follow  it.  The  nerves 
being,  as  a  matter  of  fact,  a  part  of  the  physical  system,  if  they  are 
affected  by  fright  to  such  an  extent  as  to  cause  physical  pain,  it 
seems  to  us  that  the  injury  resulting  therefrom  is  the  direct  result  of 
the  act  producing  the  fright.  Spade  v.  llailroad  Co.,  168  Mass.  285; 
Hill  V.  Kimball,  7G  Tex.  Sup.  210;  Mack  v.  Railroad  Co.,  52  So.  Ca. 
323 ;  Purcell  v.  Eailway  Co.,  48  Minn.  134;  Larson  v.  Chase,  47  Minn. 
307 ;  Meagher  v.  Driscoll,  99  Mass.  281 ;  Lombard  v.  Lennox,  155 
Mass.  70;  Mentzer  v.  Telegraph  Co.,  93  Iowa,  752. 

It  is  undoubtedly  true  that  the  door  should  not  be  thrown  wide 
open  for  trumped-up  claims  on  account  of  injuries  resulting  from 
fright,  and  we  do  not  intend  to  so  open  it  in  this  case.  Each  case 
must,  of  necessity,  depend  on  its  own  facts.  We  held  in  Lee  v.  City 
of  Burlington,  133  Iowa,  356,  that  no  recovery  could  be  had  for  the 
death  of  a  horse  alleged  to  have  been  caused  by  fright,  because  death 
therefrom  could  not  be  anticipated,  and  hence  it  was  not  the  proximate 
result  of  the  defendant's  negligence.  In  Mahoney  v.  Dankwort,  108 
Iowa,  321,  the  question  before  us  was  not  decided.  That  case  was 
disposed  of  on  the  facts  there  presented,  and  was  a  case  of  simple 
negligence.  The  reasoning  of  the  Massachusetts  cases  should  not  be 
applied  to  this  case,  for  greater  evil  would  result  from  a  holding  of 
no  actionable  wrong  than  can  possibly  follow  the  rule  we  announce. 
We  do  not  concern  ourselves  with  what  the  trial  of  this  case  may  dis- 
close, but  hold  a  cause  of  action  stated  in  the  petition. 

The  demurrer  should  therefore  have  been  overruled. 

Reversed. 


VICTORIAN  RAILWAYS  COMMISSIOI^rERS  v.  COULTAS. 

Privy  Council  of  England,  February,  1888.     13  A.  C.  222. 

,  Appeal  from  an  order  of  the  Supreme  Court  (of  Victoria)  (Dec. 
14,  1886),  entering  judgment  for  the  plaintiffs  in  two  several  sums 
of  £342  2s.  and  £400,  and  costs  of  action.  The  facts  of  the  case  and 
the  proceedings  in  the  action  are  stated  in  the  opinion. 

Sir  Richard  Couch.  The  respondents  brought  a  suit  against  the 
appellants  in  the  Supreme  Court  of  the  colony  of  Victoria  to  recover 
damages  for  injuries  sustained  by  the  respondent  Mary  Coultas, 
through  the  negligence  of  a  servant  of  the  appellants,  and  expenses 
incurred  by  the  respondent  James  Coultas,  her  husband,  through  her 
illness.  The  statement  of  claim  stated  that,  through  the  negligence 
of  the  servant  of  the  defendants  in  charge  of  a  railway  gate  at  a  level 
crossing,  the  plaintiffs,  while  driving  over  the  level  crossing,  were 
placed  in  imminent  peril  of  being  killed  by  a  train;  and,  by  reason 
of  the  premises,  the  plaintiff,  ]\Iary  Coultas,  received  a  severe  shock 
and  suffered  personal  injuries,  and  still  suffered  from  delicate  health 


696  VICTORIAN   COM'rS  v.   COULTAS.  [chap.    XX. 

and  impaired  memory  and  eyesight.  The  defendants,  by  their  de- 
fence, denied  the  allegations  in  the  statement  of  claim,  and  further 
said  they  would  contend  that  no  cause  of  action  was  disclosed  by  it, 
as  it  was  not  stated  that  either  the  plaintiffs  or  their  property  were 
struck  or  touched  by  the  train  of  the  defendants;  and,  further,  that 
the  alleged  damage  arising  from  shock  or  fright,  without  impact,  was 
too  remote  to  sustain  the  action. 

The  facts  proved  at  the  trial  before  Mr.  Justice  "Williams,  a  Judge 
of  the  Supreme  Court,  and  a  jury,  were  that  on  or  about  the  8th  of 
May,  1886,  about  nine  in  the  evening,  the  respondents,  together  with 
John  Wilson,  a  brother  of  the  wife,  were  driving  home  in  a  buggy 
from  Melbourne  to  Hawthorn,  which  is  near  Melbourne.  They  had 
to  cross  a  level  crossing  on  the  line  of  railway  from  Melbourne  to 
Hawthorn.  When  they  came  to  it  the  gates  were  closed,  and  the  gate- 
keeper came  and  opened  the  gates  nearest  to  them  and  then  went 
across  the  line  to  the  gates  on  the  opposite  side.  The  respondents 
followed  him,  and  had  got  partly  on  to  the  up  line  (the  farther  one) 
when  a  train  was  seen  approaching  on  it.  The  gate-keeper  directed 
them  to  go  back,  but  James  Coultas,  who  was  driving,  shouted  to  him 
to  open  the  opposite  gate,  and  went  on.  He  got  the  buggy  across  the 
line  so  that  the  train,  which  was  going  at  a  rapid  speed,  passed 
close  to  the  back  of  it,  and  did  not  touch  it.  As  the  train  approached 
Mary  Coultas  fainted  and  fell  forward  in  her  brother's  arms.  The 
medical  evidence  showed  that  she  received  a  severe  nervous  shock 
from  the  fright,  and  that  the  illness  from  which  she  afterwards  suf- 
fered was  the  consequence  of  the  fright.  One  of  the  plaintiffs'  wit- 
nesses said  she  was  suffering  from  profound  impression  on  the  nerv- 
ous system,  nervous  shock,  and  the  shock  from  which  she  suffered 
M^ould  be  a  natural  consequence  of  the  fright.  Another  said  he  was 
unable  to  detect  any  physical  damage ;  he  put  down  her  symptoms  to 
nervous  shock. 

The  jury  found  that  the  defendants'  servant  negligently  opened  the 
gate  and  invited  the  plaintiffs  to  drive  over  the  level  crossing  when  it 
was  dangerous  to  do  so,  and  that  the  plaintiffs  could  not  have  avoided 
what  had  occurred  by  the  exercise  of  ordinary  care  and  caution  on 
their  part.  And  they  assessed  the  male  plaintiff's  damages  at  £343  25., 
and  the  female  plaintiff's  at  £400,  leave  being  granted  to  either  side 
to  move  for  judgment  after  the  full  Court  had  decided  points  reserved. 
The  points  reserved  were :  — 

1.  Whether  the  damages  awarded  by  the  jury  to  the  plaintiffs,  or 
either  of  them,  are  too  remote  to  be  recovered? 

2.  Whether  proof  of  "impact"  is  necessary  in  order  to  entitle 
plaintiffs  to  maintain  the  action? 

3.  Whether  the  female  plaintiff  can  recover  damages  for  physical 
or  mental  injuries,  or  both,  occasioned  by  fright  caused  by  the  negli- 
gent acts  of  the  defendants? 


CHAP.    XX.]  COMMON    ASPECTS.  697 

The  full  Court,  consisting  of  j\Ir.  Justice  Williams,  and  two  other 
judges,  answered  that  the  damages  awarded  were  not  too  remote  to 
be  recovered ;  that  proof  of  "  impact "  was  not  necessary ;  and  that 
the  female  plaintiff  could  recover  damages  for  physical  and  mental 
injuries  occasioned  by  the  fright.  Thereupon  judgment  was  entered 
for  the  plaintiffs  for  the  amounts  awarded,  and  the  present  appeal  is 
from  that  judgment.  The  defendants  did  not  move  for  a  new  trial, 
and  consequently  they  cannot  now  contend  that  there  was  contribu- 
tory negligence  on  the  part  of  the  plaintiffs. 

The  rule  of  English  law  as  to  the  damages  which  are  recoverable 
for  negligence  is  stated  by  the  Master  of  the  Eolls  in  The  N'otting 
Hill,  8  P.  D.  105,  a  case  of  negligent  collision.  It  is  that  the 
damages  must  be  the  natural  and  reasonable  result  of  the  defendants' 
act;  such  a  consequence  as  in  the  ordinary  course  of  things  would 
flow  from  the  act.  The  law  would  be  the  same  in  A-^ictoria  unless  it 
has  been  otherwise  enacted  by  the  legislature,  which  it  is  not  said  it 
has  been. 

According  to  the  evidence  of  the  female  plaintiff  her  fright  was 
caused  by  seeing  the  train  approaching,  and  thinking  they  were 
going  to  be  killed.  Damages  arising  from  mere  sudden  terror  unac- 
companied by  any  actual  physical  injury,  but  occasioning  a  nervous 
or  mental  shock,  cannot  under  such  circumstances,  their  Lordships 
think,  be  considered  a  consequence  which,  in  the  ordinary  course  of 
things,  would  flow  from  the  negligence  of  the  gate-keeper.  If  it  were 
held  that  they  can,  it  appears  to  their  Lordships  that  it  would  be 
extending  the  liability  for  negligence  much  beyond  what  that  liability 
has  hitherto  been  held  to  be.  Not  only  in  such  a  case  as  the  present, 
but  in  every  case  where  an  accident  caused  by  negligence  had  given  a 
person  a  serious  nervous  shock,  there  might  be  a  claim  for  damages  on 
account  of  mental  injury.  The  difficulty,  which  now  often  exists  in 
case  of  alleged  physical  injuries,  of  determining  whether  they  were 
caused  by  the  negligent  act  would  be  greatly  increased,  and  a  wide 
field  opened  for  imaginary  claims.  The  learned  counsel  for  the 
respondents  was  unable  to  produce  any  decision  of  the  English  Courts 
in  which,  upon  such  facts  as  were  proved  in  this  case,  damages  were 
recovered.  The  decision  of  the  Supreme  Court  of  New  York,  which 
he  referred  to  in  support  of  his  contention,  was  a  case  of  a  palpable 
injury  caused  by  a  boy,  who  was  frightened  by  the  defendant's  violence, 
seeking  to  escape  from  it,  and  is  like  the  case  of  Sneesby  v.  Lancashire 
and  Yorkshire  Railway  Company,  1  Q.  B.  D.  42.  It  is  remarkable 
that  no  precedent  has  been  cited  of  an  action  similar  to  the  present 
having  been  maintained  or  even  instituted,  and  their  Lordships  decline 
to  establish  such  a  precedent.  They  are  of  opinion  that  the  first 
question,  whether  the  damages  are  too  remote,  should  have  been 
answered  in  the  affirmative,  and  on  that  ground,  without  saying  that 
*'  impact "  is  necessary,  that  the  judgment  should  have  been  for  the 


698  VICTORIAN  COM'RS  v.   COULTAS.  [chap.   XX. 

defendants.  They  will  therefore  humbly  advise  Her  Majesty  to  re- 
verse the  judgment  for  the  plaintiffs,  and  to  order  judgment  to  be 
entered  for  the  defendants,  with  the  costs  of  the  action  and  of  the 
argument  of  the  points  reserved  and  the  motion  for  judgment.  The 
respondents  will  pay  the  costs  of  this  appeal. 

Judgment  for  defendant. 


INDEX. 


Abortion, 

(<See  Assault  and  Battery.) 
Abuse  of  Process, 

want  of  probable  cause  and  termination  in  actions  of,  263-266. 
Acquittal, 

necessity  of,  in  actions  for  malicious  prosecution,  230-232,  238. 
Action  on  Representation, 

necessity  of,  in  deceit,  89-93. 

what  constitutes,  in  deceit,  89. 
Advice  of  Counsel, 

defence  of,  in  actions  for  malicious  prosecution,  256-257. 
Agent, 

liability  of  agent  of  converter,  533-535. 
Alienation  op  Affections, 

right  of  action  for,  319-328. 
Animals, 

damage  by,  592-601. 

propensities  of,  592-594. 

trespass  by,  594-601. 
Assault  and  Battery, 

accidental  hitting,  301. 

defence  of  property  as  justification  for,  630-633. 

effect  of  plaintiff's  consent  in  actions  of,  for  abortion,  623-626. 

intention,  301-305. 

permissible  force,  306-309. 

self-defence  as  a  justification  for,  633-636. 

that  the  plaintiff  was  a  trespasser  as  a  justification  for,  491-494. 

what  constitutes,  300-305. 
Arrest, 

(iSee  False  Imprisonment.) 
Assumption  of  the  Risk, 

effect  on,  of  promise  to  repair  defects,  194-203. 

employer's  duty, 

to  give  instructions,   167,   181. 

to  furnish  safe  machinery  and  appliances,  167,  178,  182-184,  191-194. 

to  furnish  a  safe  place,   187-191. 

to  employ  competent  fellow-servants,   167,  178,  184. 

extraordinary  risks,   177-182,   187-194. 

arising  before  contract  of  service,   187-191. 
arising  after  contract  of  service,   187-191. 

nature  of  the  doctrine  of,   170-176. 

of  negligence  of  fellow-servants,  170-176. 

ordinary  risks,   16G-176. 
Attachment, 

{See  Unwarranted  Attachment.) 
Averment, 

{See  Slander  and  Libel.) 

Battery, 

{See  Assault  and  Battery.) 
Blacklist, 

use  of,  as  unlawful  means,  362-382,  396-402. 

699 


700  INDEX. 

Boiler  Explosion, 

liability  for,  608-619. 
Bona  Fide  Purchaser, 

rights  of,  521-526. 

on  purchase  from  one  entrusted  with  documents  of  title,  521-526. 
on  purchase  from  one  having  no  title,  524-526. 
Boycott, 

use  of,  as  imlawful  means,  362-382. 
Business  Signs, 

fraud  as  to,  97-109. 

Capacity, 

of  infants  to  commit  torts,  643. 

of  insane  persons  to  commit  torts,  646. 

of  corporations  to  commit  torts,  652. 
Carrier, 

identification  of  passenger  with,  208-213. 

liability  of,  to  passenger  for  mental  suffering,  689-698. 

liability  of,  for  dealing  with  goods  on  authority  of  converter,  533-535. 
Charitable  Corporations, 

liability  of,  for  torts,  660-665. 
Civil  Suits, 

right  of  action  for  malicious,  259-262. 
Colloquium, 

{See  Slander  and  Libel.) 
Commercial  Agency, 

liability  for  false  representations  to,  83-86. 
Competition, 

as  a  defence  to  actions  for  procuring  breach  of  contract,  334-342. 

as  a  defence  to  actions  for  procuring  refusal  to  contract,  346-355,  383-402. 

what  constitutes,  346-362,  383-402. 
(See  Unfair  Competition.) 
Concealment, 

right  of  action  for  fraudulent,  46-53. 
Consent, 

of  plaintiff  to  defendant's  unlawful  conduct,  187-191,  403-414,  621-626. 

of  plaintiff  in  actions  for  procuring  refusal  to  contract,  403-414. 

validity  and  effect  of,  as  a  defence,  621-626. 
Consortium, 

wife's  action  for  loss  of,  319-328. 
Conspiracy, 

effect  of,  in  actions  for  procuring  refusal  to  contract,  362-382,  396-402. 

in  restraint  of  trade,  346-382,  396-414. 

to  control  trade,  346-382,  396-414. 
Contract, 

breach  of,  distinguished  from  tort,  1-9. 

constitutional  right  of  parties  to,  to  be  free  from  interference  of  third  per- 
sons, 383-396,  403-414. 

effect  of,   between   defendant  and  third   person,   in   actions  for  inducing 
latter  not  to  deal  with  plaintiff,  355-362,  403-414. 

interference  with,  329-414. 

right  of  action  for  breach  of,  contrasted  with  action  of  deceit,  39-46. 

(See  Procuring  Breach  of  Contract:   Procuring  Refusal  to  Contract.) 
Contributory  Negligence, 

bunlen  of  proof  of,  204-208. 

I)liiintiff's  violation  of  law  as,  668-675. 

theory  of,  as  a  defence  in  negligence  cases,  203-204. 
Conversion, 

(lftn;uid  and  refusal  in  actions  of,  524-526,  535-543. 

dcslniction  of  chattel  as  a,  504-512. 

finding  chill  f(!l,  515. 

intent  in  actions  for,  504-512. 

nature  of,  504-515. 


INDEX.  701 

of  horse,  508-512. 

right  of  action  for,  against  vendee  of  bailee,  515-519. 

right  of  action  for,  against  fraudulent  vendee,  519-520. 

right  of  action  against  agent  of  converter,  533-535. 

right  of  bona  fide  purchasers,  521-526. 

right  of  pledgee  to  repledge,  526-533. 

sufficient  possession  to  maintain,  515. 
Corporations, 

liability  of,  for  torts,  652-665. 
Co-Tenants, 

right  of,  to  maintain  trespass,  489-491. 
Counsel, 

advice  of,  as  a  defence,  256-257. 

privilege  of,  as  a  defence  in  actions  for  slander,  464-471. 
Crime, 

imputation  of,  436-446. 

tort  as  a,  9-14. 
Criticism, 

distinguished  from  privilege,  471-476. 

what  is,  471-479. 

Damage, 

in  deceit,  90-95. 

without  injury  does  not  give  right  of  action,  20-30. 
(<See  Special  Damage.) 
Damnum  absque  Injuria, 

no  right  of  action  for,  25-30. 
Dangerous  Things,  Escape  of, 

{See  Escape  of  Dangerous  Things.) 
Dealers'  Talk, 

no  liability,  58-59. 

what  constitutes,  59. 
Deceit, 

acting  on  representation,  81-93. 

as  defence  to  an  action  on  contract,  46-51. 

concealment  as  basis  of  action  for,  46-53. 

elements  of  action  for,  31-95. 

false  opinions  as  basis  of  an  action  for,  53-58. 

fraud  and  damage,  31-39. 

fraudulent  concealment  as,  51-53. 

honest  belief  in  truth  of  representation  as  a  defence  in  action  for,  39-44,  65-79. 

implied  representation,  53-58. 

in  sale  of  horse,  67-70. 

liability  of  directors  in,  for  false  reports,  86-89. 

liability  in,  for  false  statements  to  commercial  agency,  83-86. 

liability  of  infants  for,  644-645. 

liability  in,  only  to  one  who  has  acted  on  representations,  89. 

making  examination  before,  53-58,  79-80. 

making  investigation,   53-58,  79-80. 

means  of  knowledge,   53-58,  79-80. 

necessity  of  special  damage  in  action  of,  90-95. 

negligent  representation,  60-67,  72. 

negligence  of  plaintiff  in  action  for,  no  defence,  79-80. 

promissory  representation  not  the  basis  of,   1-4. 

right  of  action  for,  contrasted  with  that  for  breach  of  contract,  39-46. 

statements  of  cost,  33. 

statements  of  opinion,  53-58. 

statements  of  value,  58-59. 

what  constitutes,  31-95. 

who  entitled  to  sue  for,  81-88. 
Defamation, 

meaning  of,  415-420. 

((See  Slander  and  Libel.) 


702  INDEX. 

Dkmand  and  Refusal, 

necessity  of,  in  action  for  conversion,  524-526,  535-543. 
Directors, 

of  corporations,  liability  of,  for  false  reports  to  state,  86-89. 

of  corporations,  liability  of,  for  false  representations,  61-67,  70-78. 
Dominion, 

assertion  of,  necessary  in  action  for  conversion,  504-512. 

Emancipation, 

(See  Seduction  and  Enticement.) 
Enticement, 

(See  Seduction  and  Enticement.) 
Escape  of  Dangerous  Things, 

explosion  of  boiler,   608-619. 

nature  of  protection  against,  602. 

rule  in  England  as  to,  602-608. 

rule  in  this  country,  608-619. 

water  escaping  from  reservoirs,  619-621. 
Explosion, 

damage  from,  608-619. 

"  Fair  Criticism," 

explained,  471-479. 
False  Imprisonment, 

arrest  with  warrant,  274-283. 

arrest  without  warrant,  295-299. 

irregularity  of  process,  286-295. 

liability  of  officers  serving  process  in,  274-283,  283-288,  289. 

nature  of  restraint,  270-274. 

partial  restraint,  270-274. 

process  voidable  for  error,  286-295. 

reasonable  cause,  295-299. 

right  of  officer  to  arrest  without  warrant,  295-297, 

right  of  private  citizen  to  arrest,  297-299. 

what  constitutes,  270-274. 
Felony, 

merger  of  civil  remedy  in,    9,  10. 
Fellow-Servants, 

injury  by  negligence  of,  166-194. 

who  are,   170-176. 
Finding, 

gives  right  of  possession  against  wrong-doer,  515. 
Forcible  Entry, 

unlawful  since  I'iSl,  309. 
Fraud, 

(See  Deceit.) 

Honest  Belief, 

as  defence  to  action  for  deceit,  39-44,  60-79. 
Houses, 

fall  of,  544-549. 
Husband  and  Wife, 

action  by  wife  for  loss  of  consortium  of  husband,  319-328. 

Identification, 

of  passenger  with  carrier,  208-213. 
Imprisonment, 

(See  False  Imprisonment.) 
Imputed  Negligence, 

botwcf-n  carrier  and  passenger,  208-213. 

bf'twf'fn  parent  and  child,  214-220. 
Imputamility, 

of  negligence  of  parent  or  guardian  (o  ciiild,  214-220. 

of  negligence  of  carrier  to  passenger,  208-213. 


INDEX.  703 

Injury, 

legal  conception  of,  25-30. 
Insane  Person, 

liability  of  for  torts,  646-652. 
Intent, 

in  action  for  conversion,  504-512. 

in  assault  and  battery,  301-305. 

that  plaintiff  shall  act  on  false  representation  essential  in  action  for  deceit 
81-90. 
Interference  with  Contract, 

(See  Procuring  Breach  of  Contract:   Procuring  Refusal  to  Contract.) 
Interpretation  of  Language, 

in  cases  of  slander,  415,  416,  425-427. 
Innuendo, 

{See  Slander  and  Libel.) 

Justification, 

competition  as  a,  in  action  for  procuring  breach  of  contract,  334-342. 

defence  of  property  as  a,  630-633. 

defence  that  the  plaintiff  was  a  trespasser  as  a  justification  for  an  assault, 

491-494. 
duty  to  advise  as  a,  in  actions  for  procuring  breach  of  contract,  342-345. 
necessity  as,  for  trespass,  626-630. 
self-defence  as  a,  633-636. 
truth  as  a,  in  slander  and  libel,  453-558. 
wliat  constitutes,  in  an  action  for  assault  and  battery,  306-309. 

Knowledge  of  Falsity, 

assertion  of  fact  susceptible  of  knowledge  equivalent  to,  67-70,  70-79. 
in  suits  for  deceit,  31-44,  60-77. 
means  of  knowledge,  79-80. 

of  representation,  not  necessary  in  equitable  actions  for  specific  performance 
or  for  recission  of  contracts,  53-56,  61,  70,  71. 

Landlord, 

right  of,  to  maintain  trespass,  485-486. 
Landowner, 

liability  of,  to  invited  persons,  152-163. 

liability  of,  to  trespasser,  110-115,  145-163. 
Language, 

interpretation  of,  415,  416,  425-427. 
Lateral  Support, 

(See  Support.) 
Legal  Advice, 

acting  on,  in  making  arrest,  256,  257. 
Libel, 

(See  Slander  and  Libel.) 
License, 

duty  to  licensee  in  regard  to  condition  of  premises,  152-163. 
{See  Negligence:  Trespass.) 
Lien, 

nature  of  interest  created  by,  526-533. 
Literary  Criticism, 

when  libellous,  471-476. 
"  Look  and  Listen," 

duty  to,  in  negligence  actions,  129-131. 

Malice, 

as  affecting  privilege  of  judges  and  executive  heads  of  government,  636-643. 
conception  of,  in  actions  for  procuring  breach  of  contract,  330-345. 
conception  of,  in  actions  for  slander  and  libel,  453-471. 
effect  of,  overturning  defence  of  truth  or  privilege  in  actions  for  slander  and 
libel.  453-471. 


704  INDEX. 

in  actions  for  alienation  of  affections,  327-328. 

in  actions  for  violation  of  water  rights,  567-578. 

in  combinations  to  control  trade,  346-355. 

meaning  of,  in  actions  for  malicious  prosecution,  257-259. 

meaning  of,  in  actions  for  slander  of  title,  225-229. 

meaning  of  term.  (See  Conspiracy:     Malicious   Prosecution:    Slander  and 
Libel.) 
Malicious  Prosecution, 

acquittal  of  party  prosecuted,  230-232,  238. 

advice  of  counsel,  256-257. 

criminal  suit  terminated  in  nol.  pros.,  233-236,  241-247. 

effect  of  entry  of  nolle  prosequi  as  termination  of  prosecution,  233,  241-247. 

elements  of  action,   230-262, 

malice,  257-259. 

origin  of  actions  for,  230. 

requirement  of  acquittal  in  prosecution  to  bring  action  of,  230-232,  238. 

requirement  and  meaning  of  malice  in  suits  for,  257-259. 

termination  of  the  prosecution,  230-247. 

want  of  probable  cause,   247-249. 

what  constitutes  probable  cause  in  suits  for,  247-249. 

what  constitutes  termination  of  prosecution  in  actions  of,  230-247. 
Master  and  Servant, 

(See  Negligence:  Independent  Contractor:    Assumption  of  Risk.) 

assuming  the  risk,   166-203. 

injuries   to   servants    by    condition   of    master's  premises   or    machinery, 
167-194. 

negligence  of  fellow-servant,   170-176. 

{See  Enticement  and  Seduction.) 
Means  of  Knowledge, 

in  actions  for  deceit,  79-80. 
Mental  Suffering, 

{See  Negligence:    Special  Damage.) 
Monopoly, 

agreements  tending  to  create,  346-362. 
Moral  Duty, 

distinguished  from  legal  duty,  20-25. 
Moral  Turpitude, 

offences  involving,  436-446. 
Municipal  Corporations, 

liability  of,  for  torts,  652-660. 

Negligence, 

contributory  fault,  203-208,  668-675. 

defects  in  buildings,    152-159,  187-191. 

defects  in  machinery,   167,  178,   182-184,  191-194. 

degrees  of,  119-124. 

duty  of  occupant  to  bare  licensees,  152-163. 

extraordinary  risks  assumed  when,  177-182,  187-194. 

in  deceit,  60. 

identification  of  passenger  with  carrier,  208-213. 

intent  to  injure  not  material  to  cause  of  action  in,  116-119. 

imputability  of  parent's  negligence  to  child,  214-220. 

invited  licensee,   152-163. 

legal  conce[)tion  of,   110. 

liability  of  employer  for  injury  to  employee,   166-203. 

(See  Assumption  of  Risk.) 
liability  of  hmdowncr  in,  to  invited  persons,   152-163. 
liability  of  landowner  in,  to  trespasser,  110-115,  145-163. 
liabiiitv  of  railroad  in,  for  damages  sustained  by  trespasser  on  turntables, 

145. 
master  and  servant:    assuming  risk,  167-203. 
mental  distress  not  damage  in,  689-698. 
negligence  of  fellow-servants,   170-170. 


INDEX.  705 

not  necessary  to  constitute  nuisance,  587-591, 

of  plaintiff  in  action  of  deceit,  no  defence,  79-80. 

open  shafts  or  wells,   152-159. 

presumptive  negligence,  132-138. 

province  of  court  and  jury  in  actions  of,  124-131,  138-145. 

remote  vendor  of  poison,  52. 

risks    not    assumed.    (Sec  Assumption  of    Risk:  Independent  Contractor: 
Contributory  Negligence:  Imputed  Negligence.) 

special  damage  in,  689-698. 

standard  of  duty  in  actions  of,  138-163. 

turntable  cases,   145-151. 

unlawful  acts  not  per  se  contributory,  668-675. 

violation  of  ordinances,  668-675. 

what  constitutes,   110-115,   138-145. 

when  case  may  be  taken  from  jury,  110. 

who  are  fellow-servants,  170-176. 
News-vendors, 

liability  of,  for  libel,  433-435. 
Nolle  Prosequi, 

effect  of  entry  of,  as  a  termination  of  prosecution,  233-236,  241-247. 
Nuisance, 

"  convenient  "  place,  585-587. 

negligence  not  necessary  to  constitute,  587-591. 

what  constitutes,  585-591. 

Officers, 

(See  False  Imprisonment.) 
Opinion, 

representation  of  credit  of  another  not,  31-39. 

statement  of,  as  a  statement  of  fact,  53-58. 

statement  of  value,  33,  58-59. 

Parent  and  Child, 

injury  of  child  by  parent's  negligence,  214-220. 

parent's  negligence  imputed  to  child,  214-220. 

seduction  of  child.     {See  Seduction  and  Enticement.) 
Partnership, 

right  of,  to  rely  on  representation  made  to  one  partner,  81-83. 
Passenger, 

identification  of,  with  carrier,  208-213. 
Pledgee, 

right  of,  to  sell  or  repledge,  526-533. 
Premises, 

use  and  condition  of,  152-163. 
(See  Negligence.) 
Possession, 

sufficiency  of,  in  actions  for  conversion,  515. 

sufficiency  of,  to  maintain  trespass,  482-491. 

trespass  an  injury  to,  480-482. 
Prescription, 

as  to  water  not  gathered  into  a  stream,  578-584. 
Privilege, 

effect  of  malice  on,  636-643. 

of  judges,  639. 

of  heads  of  departments  of  government,  636-643. 
(See  Slander  and  Libel.) 
Probable  Cause, 

a  question  for  the  court  in  actions  for  malicious    prosecutions,  241-247, 
25^262. 

burden  of  proof  of,  249-252,  257-259. 

conviction  conclusive  of,  252-255. 

discharge  by  committing  magistrate  as  evidence  of  the  want  of,  249-252, 
257-259. 


706  INDEX. 

in  abuse  of  process,  263-266. 

in  malicious  prosecution,  247-249. 

in  unwarranted  attachment,  267-269. 

to  arrest  without  warrant,  295-297. 

want  of,  not  required  in  abuse  of  process,  263-266. 

what  is,  in  malicious  prosecution,  247-249. 
Prosecution, 

termination  of,  230-247. 
Procuring  Breach  of  Contract, 

competition  as  a  defence  to  action  for,  334-342. 

conception  of  malice  in  actions  for,  342-345. 

essentials  of  action  for,  329-334. 

nature  of  right  of  action  for,  329-334. 
Procuring  Refusal  to  Contract, 

competition  as  a  defence  in  actions  for,  346,  383-402. 

effect  of  plaintiff's  consent  in  actions  for,  402-414. 

effect  of  conspiracy  in  actions  for,  362-382,  396-402. 

elements  of  right  of  action  for,  346-414. 

sjTnpathetic  strike  as  unlawful  means,  383-396. 

use  of  blacklist,  362-382,  396-402. 

use  of  boycott,  362-382,  396-402. 

validity  of  plaintiff's  consent,  403-414. 
Promise  to  Repair, 

{See  Assumption  of  the  Risk.) 
Proximate  and  Remote  Cause, 

meaning  of,  665-684. 

repetition  of  slander,  675-679. 

violation  of  law,  668-675. 
Publication, 

what  constitutes,  in  slander  and  libel,  427-435. 

Reasonable  Cause, 

want  of,  241-259,  295-299. 
Repetition  of  Slander, 

liability  for,  675-679. 
Replevin, 

concurrent  remedy  with  trespass,  when,  482. 
Representation, 

acts  or  conduct  constituting,  51-53. 

concealment  as  a,  46-51. 

dealers'  talk  as  a,  58-59. 

of  credit,  31-39. 

of  fact  susceptible  of  knowledge,  67-79. 

of  opinion,  53-58. 

promissory,  not  basis  of  action  in  deceit,  1-4. 
Res  Ipsa  Loquitur, 

doctrine  of,  in  negligence  cases,   119-122,   132-138. 

doctrine  of,  in  actions  of  negligence  by  employees,  124-129. 
Reservoir, 

breaking  of,  619-621. 
Rp:.straint  of  Trade, 

combinations  in,  346-382,  396-414. 
Risk, 

(See  Assumption  of  the  Risk.) 

Scienter, 

proof  of,  in  deceit,  31-44,  60-79. 
Sedi'ction  and  Enticfment, 

ffTcct   of  omancipalion  of  dauglifer,  312-317. 

father's  right  of  action  for  seduction  of  minor  daughter,  310. 

father's  ritrht  of  action  for  seduction  of  adult  daughter,  312-317. 

mother's  right, s,  317-319. 


INDEX.  707 

right  to  service  necessary,  310-319. 

wife's  action  for  loss  of  consortium,  319-328. 
Self  Defence, 

{See  Assault  and  Battery:  Justification.) 
Servant, 

{See  Negligence:  Assumption  of  the  Risk.) 
Slander  and  Libel, 

absolute  privilege,  464-471. 

argument  of  counsel,  464-471. 

charge  affecting  plaintiff  in  his  occupation,  447-449. 

charge  of  crime  involving  moral  turpitude,  436-446. 

charge  of  unchastity,  437-446. 

charge  of  unchastity  not  actionable  per  se,  323. 

conception  of  malice  in  actions  for,  453-471. 

criticism  distinguished  from  privilege,  471-476. 

definition  of,  415-420. 

distinction  between,  419,  449-453. 

effect  of  plaintiff's  consent,  622-623, 

fair  criticism,  471-479. 

imputations  affecting  one  in  business  or  profession,  447-449. 

in  actions  for,  words  must  have  been  spoken  of  or  concerning  the  plaintiff, 
420-424. 

interpretation  of  language,  415,  416,  425-427. 

liability  of  news-vendors  for,  433-435. 

libel  of  wider  extent  than  slander,  449-453. 

malice  and  privileged  communications,  453-471. 

meaning  of  words  used  in  actions  of,  420-427. 

natural  tendency  of  charge,  436-449. 

newspapers  have  no  privilege  to  publish,  462,  463. 

office  of  averment  in,  417. 

office  of  colloquium  in,  418. 

office  of  innuendo  in,  418. 

privilege,  prima  facie  and  absolute,  456-471. 

publishers,  editors,  and  booksellers,  433-435,  462-463. 

repetition  of,  675,  687. 

source  of  newspaper's  information,  462-463. 

truth  as  a  defence  in,  453-458. 

vendor  of  newspaper  or  book,  433-435. 

what  constitutes,   415-424. 

what  constitutes  publication  in  actions  for,  427-435. 
Slander  of  Title, 

nature  of  wrong,  221-229. 

necessity  of  special  damage  in,  221-225. 
Special  Damage, 

mental  distress  as,  677-679,  689-698. 

necessity  of  in  deceit,  90-95. 

necessity  of  in  slander,  437-446. 

necessity  of  in  slander  of  title,  221-225. 

necessity  of  in  negligence,  689-698. 

what  constitutes,  20-25,  90-93,  677-698. 
Specific  Performance, 

false  representations  as  a  defence  to,  53-56. 
Statute, 

breach  of,  as  a  bar  to  plaintiff's  action,  668-675, 
Suicide, 

not  proximate  consequence  of  defendant's  negligence,  665-668. 
Supports, 

lateral  siipport.,  544-549. 

natural  condition  of  soil,  548,  549. 

subjacent  support,  550-559. 

superincumbent  weight,  544-549. 
Surface  Water, 

{S?e  Watercourses.) 


708  INDEX. 

Termination, 

of  prior  action  in  abuse  of  process,  263-266. 

of  prior  action  in  unwarranted  attachment,  267-269. 

of  prior  action  in  malicious  prosecution,  230-247. 

{See  Abuse  of  Process:   Unwarranted  Attachment:   Malicious  Prosecution.) 
Tort, 

as  a  crime,  9-20. 

breach  of  contract  distinguished  from,  1-9. 

breach  of  moral  duty  distinguished  from,  20-25. 

liability  of  infants  for,  643. 

liability  of  insane  persons  for,  646. 

liability  of  corporations  for,  652. 

merger  of  remedy  in,  in  felony,  9,  10. 

suspension  of  remedy  in,  9-12. 
Trade  Name, 

{See  Unfair  Competition.) 
Trade  Union, 

as  a  combination  in  restraint  of  trade,  355-396,  408. 

right  of,  to  organize,  355-396,  403-414. 

right  of,  to  strike,  355-396. 

{See  Procuring  Breach  of  Contract:   Procuring  Refusal  to  Contract.) 
Trespass, 

ab  initio,  498-503. 

as  an  injury  to  possession,  480-482. 

bare  possession  sufficient  to  maintain,  488. 

by  animals,  594-601. 

by  co-tenant,  489-491. 

damage  not  necessary,  480-482, 

disseisor  may  sue  for,  488. 

justification  of,  491-503. 

license  to  commit,  494-503. 

necessity  as  justification  of,  626-630. 

replevin  and  trespass  as  concurrent  remedies,  482. 

right  of  co-tenants  to  maintain,  489-491. 

right  of  landlord  to  maintain,  485-486. 

siSficiency  of  possession  ia  actions  for,  488. 

upon  sidewalk,  500. 
Trespasser, 

liabihty  of  landowner  to,  110-115,  145-163. 
Trespass  ab  Initio, 

explained,  498-503. 

{See  Trespass.) 
Trover, 

{See  Conversion.) 
Truth, 

as  a  defence  in  slander  and  libel,  453-458. 
Turntable  Cases, 

{See  Negligence.) 

Unfair  Competition, 

distinguished  from  violation  of  trade  mark,  97-99. 

what  constitutes,  96-109. 
Unwarranted  Attachment, 

nature  of  action  of,  267-269. 

probable  cause  in,  267-269. 

Value, 

representation  of,  58-59. 
Violation  ov  Law, 

as  proximate  cause  of  plaintiil's  loss,  668-675. 
Volenti  non  I'it  Injuria, 

{See  Consent.) 


INDEX.  709 

Want  of  Probable  Cause, 

{See  Malicioxis  Prosecution:   Abuse  of  Process:  Unwarranted  Attachment.) 
Warrant, 

probable  cause  to  arrest  without,  295-297. 

{See  False  Imprisonment.) 
Water, 

escape  of,  artificially  collected,  602-608. 

escape  of,  from  reservoir,  619-621. 

(See  Watercourses.) 

WaTERCOU  RSES, 

damage  by  obstructing,  562-567. 
malice,  567-578. 
percolating  water,  567-584. 
prescription,  578-584. 
reasonable  use,  560-562,  578-584. 
sub-surface  water,  567-578. 

surface  water  running  in  no  defined  channel,  567-684. 
underground  stream,  567-578. 
Writ, 

{See  False  Imprisonment.) 


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